Michael K. Plumb, Esq. Carter Ledyard & Milburn, LLP 2 Wall St.

New York, NY 10005 (212) 732-3200 Email: plumb@clm.com Attorneys for Defendant Nancy Pincus ----------------------------------------------------------------x : LANE BAJARDI and KIMBERLY CARDINAL : BAJARDI, : : Plaintiffs, : : : v. : : : NANCY PINCUS and ROMAN BRICE and : JOHN DOES 1-10, : : Defendants. : ----------------------------------------------------------------x

SUPERIOR COURT OF NEW JERSEY HUDSON COUNTY LAW DIVISION Index No. L-3723-12 Civil Action

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NANCY PINCUS MOTION FOR SUMMARY JUDGMENT

7107708.3

TABLE OF CONTENTS Page(s) INTRODUCTION ...........................................................................................................................1 BACKGROUND AND FACTS ......................................................................................................4 A. B. C. D. E. F. G. Plaintiffs Early Work as Councilwoman Masons Political Operatives (2005-2007) .......5 Plaintiffs Worked as Political Operatives and Anonymously Wrote on Behalf of Councilwoman Mason in the 2009 Mayoral Election .........................................................9 Lane Bajardi Endorsed Mayor Cammarano and Publicly Defended Corruption the Day Before the FBI Arrested Cammarano for Accepting Bribes ..............................................13 Ms. Pincus Became Involved in Hoboken Politics, Commented on a Board of Education Decision to Decline Federal Funds and First Encountered Lane Bajardi .........14 Lane Bajardi Worked to Get Out the Vote in Councilman Occhipintis Potentially Criminal November 2010 Election Campaign ...................................................................17 Ms. Pincus Blogged About Voting Irregularities in the Occhipinti Election and Again Encountered Lane Bajardi..................................................................................................18 Councilwoman Masons Attempts to Obtain E-Mails Addressed to the Two Named Defendants and 10 Other Individuals Prompted an FBI Investigation into Stolen EMails ..................................................................................................................................20 Lane Bajardi Filed a Criminal Complaint In Response to Satire Published by Ms. Pincus, Further Publicizing a Long Running Public Dispute ............................................22 For Years Lane Bajardi Spoke at City Council Meetings to Promote Councilwoman Masons Political Career ....................................................................................................24 Internet Commenters Using Pseudonyms prosbus and Curious Gal Promoted Beth Mason and Criticized Nancy Pincus in the Same Manner as Plaintiffs Had Done Previously and the Comments Otherwise Appear to be Authored by the Plaintiffs ..........27

H. I. J.

ARGUMENT .................................................................................................................................32 I SUMMARY JUDGMENT IS THE PREFERRED METHOD FOR DISPOSING OF DEFAMATION LAWSUITS ............................................................................................32 II PLAINTIFFS MUST ESTABLISH ACTUAL MALICE TO RECOVER DAMAGES BECAUSE THEY ARE PUBLIC FIGURES AND THE COMPLAINED OF STATEMENTS ADDRESS ISSUES OF PUBLIC INTEREST .......................................34 A. B. The Actual Malice Standard ...............................................................................34 Plaintiffs Are Public Figures in Hoboken Politics .................................................36 1. Plaintiffs have voluntarily participated in Hoboken politics with a purpose of influencing outcomes ...................................................................36 2. Plaintiffs Have Had Significant Exposure in the Press ..................................44 i
7107708.3

3. 4. C. D.

Plaintiffs Have Access to the Press and Can Otherwise Counteract False Statements .............................................................................................45 Plaintiffs Past Conduct has Engendered Legitimate Public Response .........47

Lane Bajardi is a General Purpose Public Figure Subject to the Actual Malice Standard .................................................................................................................48 The Fair Comment Actual Malice Standard Applies to Statements Addressing Plaintiffs Roles as Political Operatives and Other Matters of Public Interest ......49

III STATUTE OF LIMITATIONS ................................................................................................51 IV THE COMPLAINED OF STATEMENTS ARE NOT DEFAMATORY ...............................52 A. The Content of the Complained of Statements Makes Them Non-Defamatory ....53 1. Statements that Are Not Of and Concerning Plaintiffs Are Not Actionable ......................................................................................................53 2. 3. B. True Statements Are Not Actionable .............................................................53 Statements Not Susceptible of a Defamatory Meaning Are NonActionable ......................................................................................................56

Opinions and Similar Statements Are Unverifiable and Non-Defamatory ...........57 1. Opinion Is Non-Actionable Privileged Speech ..............................................57 2. 3. Rhetoric and Hyperbole Are Non-Actionable Speech ...................................60 Insults Are Not Actionable Defamation.........................................................61

C. D.

The Context of the Complained of Statements Makes Them Non-Defamatory ....62 Analysis of Each Complained of Statement is Necessary to Dispose of or Pare Down Defamation Complaints at the Earliest Possible Stage of Litigation ................................................................................................................65 1. Complaint Paragraph 28 ................................................................................65 2. 3. 4. 5. 6. 7. 8. 9. Complaint Paragraph 31 ................................................................................68 Complaint Paragraph 38 ................................................................................72 Complaint Paragraph 41 ................................................................................75 Complaint Paragraph 47 ................................................................................77 Complaint Paragraph 52 ................................................................................79 Complaint Paragraph 56 ................................................................................81 Complaint Paragraphs 59, 62, 65, 71 and 74 .................................................84 Complaint Paragraph 77 ................................................................................89

10. Complaint Paragraphs 84 and 87 ...................................................................92 11. Complaint Paragraphs 99 and 100 .................................................................96 12. Complaint Paragraph 103 ..............................................................................98 13. Complaint Paragraph 118 ............................................................................100 14. Complaint Paragraph 121 ............................................................................103 ii
7107708.3

V THE COMPLAINED OF STATEMENTS DO NOT STATE CLAIMS FOR INTENTIONAL TORTS .................................................................................................107 A. B. The Complaint Does Not State A Cause of Action for Intentional Infliction of Emotional Distress ...............................................................................................108 The Complaint Does Not State A Cause of Action For Intentional Economic Torts .....................................................................................................................110

CONCLUSION ............................................................................................................................112

iii
7107708.3

TABLE OF AUTHORITIES Page(s) CASES Buckley v. Trenton Sav. Fund Soc'y., 111 N.J. 355 (1988) ...............................................................................................................108 Casamasino v. City of Jersey City, 304 N.J. Super. 226 (1997), revd on other grounds, 158 N.J. 333 (1999) ...........57, 60, 71, 75 Churchill v. State, 378 N.J. Super. 471 (App. Div. 2005) .....................................................................................51 Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761 (D.N.J. 2006) .............................................................................59, 60, 61, 76 Dairy Stores, Inc. v. Sentinel Publg Co., 104 N.J. 125 (1986) ...........................................................................................................35, 49 DeAngelis v. Hill, 180 N.J. 1 (2004) ............................................................................................................. passim Decker v. The Princeton Packet, 116 N.J. 418 (1989) ...............................................................................................................107 Dijkstra v. Westerink, 168 N.J. Super 128 (App. Div. 1979) ......................................................................................53 Ditzel v. Univ. of Medicine and Dentistry of New Jersey, 962 F.Supp. 595 (1997) .....................................................................................................53, 68 Durando v. The Nutley Sun, 209 N.J. 235 (2012) .................................................................................................................33 Edelman v. Croonquist, No. 09-1938, 2010 WL 1816180 (D.N.J. 2010) ....................................................58, 59, 61, 78 Ferraro v. Bell Atlantic Co., 2 F.Supp.2d 577 (D.N.J. 1998) ..............................................................................................110 G.D. v. Kenny, 205 N.J. 275 (2011) ......................................................................................................... passim Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15 (App. Div. 2001) .....................................................................................108

i
7107708.3

Hagaman v. Angel, No. ATL-L-2408-03, 2005 WL 1390360 (N.J. Super. 2005) ............................................61, 62 Higgins v. Pascack Valley Hosp., 158 N.J. 404 (1999) .................................................................................................................57 Hume v. Bayer, 178 N.J. Super. 310 (N.J. Super. 1981) .........................................................................108, 109 Hustler Mag. v. Falwell, 485 U.S. 46 (1988) .............................................................................................................64, 66 Ingraham v. Ortho-McNeil Pharmaceutical, 422 N.J. Super. 12 (App. Div. 2011) .....................................................................................109 Karnell v. Campbell, 206 N.J. Super. 81 (App. Div. 1985) .......................................................................................63 Lawrence v. Bauer Pub. & Printing Ltd., 89 N.J. 451 (1982) .............................................................................................................33, 36 LoBiondo v. Schwartz, 323 N.J. Super 391 (1999) .....................................................................................................107 Lynch v. New Jersey Educ. Assn, 161 N.J. 152 (1999) ......................................................................................................... passim MacKay v. CSK Publishing Co., Inc., 300 N.J. Super. 599 (App. Div. 1997) .....................................................................................52 Maressa v. New Jersey Monthly, 89 N.J. 176 (1982) .......................................................................................................32, 35, 65 McLaughlin v. Rosania, Bailets & Talamo, Inc., 331 N.J. Super. 303 (App. Div. 2000) .........................................................................52, 63, 89 Miele v. Rosenblum, 254 N.J. Super. 8 (App. Div. 1991) .........................................................................................73 New York Times Co. v. United States, 403 U.S. 713 (1971) .........................................................................................................74, 106 Obendorfer v. Gitano Group, Inc., 838 F.Supp. 950 (D.N.J. 1993) ..............................................................................................110 Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989) .........................................................................................................52, 111

ii
7107708.3

Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149 (2000) .................................................................................................................50 Romaine v. Kallinger, 109 N.J. 282 (1988) ...............................................................................................56, 89, 91, 96 Rossi v. CBS Corp., No. L-1135-07, 2012 WL 2529357 (App. Div. 2012) .............................................................49 Salek v. Passaic Collegiate School, 255 N.J. Super. 355 (App. Div. 1992) ...............................................................................63, 66 Sisler v. Gannett Co., 104 N.J. 256 (1986) ...........................................................................................................35, 49 Snyder v. Phelps, 131 S.Ct. 1207 (2011) ..............................................................................................................58 Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988) ...................................................................................................58 Taylor v. Metzger, 152 N.J. 490 (1998) ...............................................................................................................108 Turner v. Wong, 363 N.J. Super. 186 (App. Div. 2003) ...................................................................................110 Van Englen v. Broadcast News Networks, Inc., Nos. CIV 96-2503, CIV 96-2583, 1997 WL 406267 (D.N.J. 1997) .............................................................................49, 59, 71, 75 Vassallo v. Bell, 221 N.J. Super. 347 (1987) ................................................................................................36, 49 W.J.A. v. D.A., 210 N.J. 229 (2012) ...........................................................................................................34, 52 Ward v. Zelikovsky, 136 N.J. 516 (1994) ...............................................................................................52, 56, 59, 61 Wilson v. Grant, 297 N.J. Super. 128 (App. Div. 1996) ...................................................................35, 62, 64, 88 STATUTES 18 U.S.C. 1001 ...............................................................................................................................77 47 U.S.C. 230 ..............................................................................................................................97

iii
7107708.3

N.J.S.A. 2A:14-3............................................................................................................................51 U.S. CONST. amend. I ............................................................................................................ passim OTHER AUTHORITIES Blacks Legal Dictionary, 9th Ed. ...................................................................................................54 Merriam Webster On-Line Dictionary...........................................................................................54 Websters Unabridged Dictionary, 2d Ed. ......................................................................................54

iv
7107708.3

Defendant Nancy Pincus, by her undersigned attorneys, hereby submits this Memorandum of Law, along with the accompanying Certification of Michael Plumb, dated January 2, 2013 (the Plumb Cert.), Affidavit of Michael Lenz, dated Oct. 8, 2012 (the Lenz Aff.), Affidavit of Jake Stuiver, dated Oct. 18, 2012 (the Stuiver Aff.), Affidavit of Theresa Minutillo, dated Oct. 9, 2012 (the Minutillo Aff.), Affidavit of Scott M. Siegel (undated) (the Siegel Aff.), Affidavit of Tony Soares, dated Dec. 27, 2012 (the Soares Aff.) and Affidavit of Nancy Pincus, dated January 2, 2013 (the Pincus Aff.), in support of Ms. Pincus Motion for Summary Judgment dated January 7, 2013.

INTRODUCTION Plaintiffs have alleged that Ms. Pincus made 22 statements (the Statements) that have defamed and otherwise injured them. The Statements are not actionable defamation because each is (1) time barred, (2) true, (3) substantially true, (4) opinion, (5) not of-and-concerning Plaintiffs, (6) non-defamatory, (7) satire, (8) rhetoric, and/or (9) hyperbole. The broad context of the Statements is a long-running public dispute between the Plaintiffs and Ms. Pincus concerning their respective roles in Hoboken politics. The linguistic context of the Statements is

opinionated and largely anonymous internet blogs. Ms. Pincus published most of the Statements in her partisan political blog supporting Hobokens Mayor and Board of Education, and critical of the Mayors primary political antagonist, Hoboken City Councilwoman Beth Mason, and Ms. Masons political operatives the Plaintiffs. One statement was within a single e-mail from Ms. Pincus to 1010WINS. The remainder of Statements were published in the comment sections of other blogs amidst heated exchanges between anonymous commenters addressing local political issues. Reasonable readers understand that statements made in such contexts are opinion.

7107708.3

As demonstrated at length herein, Plaintiffs are two of Councilwoman Masons political operatives who voluntarily engaged in politics, relish public controversy, and have for years engendered legitimate public interest in their political roles, thereby implicating the actual malice standard for their defamation claims. E-mails authored by the Plaintiffs, the Plaintiffs public statements, press reports, and other supporting documents attached to the accompanying certification and affidavits demonstrate that Plaintiffs cannot establish the Statements which assert facts, if any, were published with knowledge of their falsity a requirement for public figures like Plaintiffs to establish a defamation claim. Evidently aware of their insurmountable burden of proof, and in a striking series of misrepresentations to this Court, in the Complaint the Plaintiffs have repeatedly denied their roles as two of Hobokens most divisive and well-known political operatives. In addition to their defamation claims, Plaintiffs seek recovery for (1) intentional infliction of emotional distress, (2) interference with prospective economic advantage, and (3) interference with contract, all of which are based exclusively on the allegedly defamatory statements. Plaintiffs may not recover damages for speech that is not actionable defamation and may not end-run the statute of limitations or the actual malice requirements of their defamation suit with additional tort claims sounding exclusively in defamation. Furthermore, Plaintiffs have failed to state a cause of action for their economic tort claims by failing to identify a contract that was breached, an economic advantage that was foregone, or an injury. Likewise, Plaintiffs have failed to state a cause of action for their intentional infliction of emotional distress claims because they have not identified either an outrageous act or an injury, two essential elements of any such claim.

2
7107708.3

Summary judgment is appropriate for disposing of defamation claims concerning political issues at the earliest possible phase of litigation, because defamation lawsuits chill speech and impose tremendous costs on defendants for exercising their First Amendment rights. As is amply demonstrated in this brief, Plaintiffs have worked for years to advance the political career of Councilwoman Mason. This lawsuit has already chilled speech in Hoboken during the run-up to the November 2012 Board of Education election and is clearly intended to silence Ms. Masons critics as her presumed 2013 mayoral campaign approaches. The Complaint was also filed to abuse discovery, another improper purpose. For several months in 2011, Ms. Mason led a City Council investigation seeking e-mails from the Mayors offices addressed to the two named defendants and ten other individuals. At the same time, the Mayors office reported to the FBI that it believed its e-mails were being stolen. After the FBI raided City Hall and discovered e-mail theft from the Mayor and her staffers (discussed below), the City Council closed Ms. Masons investigation. Now, Ms. Masons chief political

operatives, with her publicly acknowledged coordination,1 have instituted this frivolous defamation lawsuit against the two named defendants and ten other individuals to abuse civil litigation discovery to acquire the e-mails Ms. Mason could not obtain through her City Council investigation. Plaintiffs have declined to withdraw their suit after being notified that it is frivolous and filed for improper purposes. The Statements are political, the Plaintiffs are political operatives, and the purpose of the lawsuit is to silence opposing political voices and abuse discovery for political purposes. Summary judgment at the earliest stage of litigation is the appropriate method for disposing of this case and moving Hobokens political debates out of the courtroom and back to City Council

See Plumb Cert. Exh. A(14) (video of Councilwoman Mason threatening Defendant Brice at a City Council meeting with this lawsuit well before it was filed).

3
7107708.3

meetings and blogs, where politicians and their operatives can win voters and City Council majorities by adopting better ideas and more convincing arguments, rather than by silencing their opponents with frivolous lawsuits. BACKGROUND AND FACTS The Plaintiffs and Ms. Pincus have a long history of antagonism stemming from their divergent political beliefs and alliances. Ms. Pincus supports Hobokens reform candidates (Reform) who seek to remove corrupt politicians from office and strengthen Hobokens public schools. Plaintiffs are loyal and tireless political operatives for City Councilwoman and twice failed mayoral candidate Beth Mason, a political aspirant with ever-shifting political allegiances but currently aligned with the Mayors opposition. Both the Plaintiffs and Ms. Pincus are active participants in Hobokens political community. Hoboken politics, and its two bitterly divided camps, have been subject to recent upheavals that require a brief introductory explanation.2 Bloggers typically refer to the Old Guard or Russo Faction as the entrenched political interests that have, in the past, aligned with Hobokens corrupt Mayors and the members of the Board of Education they support. Corruption had been rampant in Hoboken under the Russo Faction. For example, in 2004 former Mayor Anthony Russo admitted to extortion and mail fraud, and was sentenced to 33 months in jail and ordered to pay over $330,000 in restitution. In 2009, Russo Faction appointee and Hoboken Parking Director John Correa was indicted for conspiring to steal $600,000 from city parking meters between June 2005 and April 2008. Also in 2009, Russo Faction Mayor

Cammarano was arrested and sentenced to prison for selling zoning variances for $25,000 in

All of Hobokens elected officials are Democrats, resulting in the unique monikers assigned to the various factions.

4
7107708.3

cash. The current City Council Russo Faction members include Beth Mason, Tim Occhipinti, Michael Russo (Anthony Russos son), and Theresa Castellano (Anthony Russos niece).3 Between 2006 and 2009, the Russo Faction lost the Mayors office, the majority of the City Council and the majority of the Board of Education. Ms. Mason started her political career aligned with Reform but before or during the 2009 Mayoral contests between Mason and Mayor Zimmer, Mason had secretly re-aligned herself with the Russo Faction. An FBI surveillance tape revealed Michael Russo explaining to an informant that in exchange for his support in her mayoral candidacy, Mason had agreed to allow Russo to choose the Mayors three at-large City Councilmen, giving Russo a veto-proof City Council majority and total control of Hoboken. Plaintiffs work as Ms. Masons closest political operatives as she shifted allegiances from Reform to the Russo Faction alienated a large segment of Hobokens political community. Long before Nancy Pincus took an interest in politics, Plaintiffs were roundly criticized in Hobokens political blogs for their political tactics employed in support of Councilwoman Mason. A. Plaintiffs Early Work as Councilwoman Masons Political Operatives (2005-2007) Going back to as early as 2004, Plaintiffs worked as political operatives in Hoboken.4 In 2005, they supported City Councilwoman Carol Marshs mayoral campaign against incumbent Mayor Roberts. Plaintiffs attended political meetings, sought to help prepare Marsh for media appearances, and made public appearances urging voters to support Marsh.5 At the same time, an anonymous internet commenter using the moniker Red Haven provided in depth political
3

Evidence that this group constitutes the Russo Faction is discussed below. In short, Occhipintis election in 2010 gave the Russo Faction five City Councilmen, including the four above, who immediately voted to replace the President of the City Council with Ms. Mason based on their newly held majority. See Plumb Cert. Exh. X, Hudson Reporter, Ray Smith (Dec. 5, 2010) (New council majority plans to pick new prez). 4 Pincus Aff. Exh. 67 (Soares Aff. 2) (I met Lane Bajardi sometime in 2004 when he was appointed by Mayor Roberts to a City Committee to stop a high-rise development behind his home. Lane Bajardi and his wife also were active workers on my 2005 re-election and served as advisors for debate prep, based on their professional knowledge and TV experience.); Pincus Aff. Exh. 63 (Minutillo Aff. 1) (I first met Kim Cardinal in approx.. 2005, she and her husband Lane Bajardi were in the inner circle of reform politics.) 5 Pincus Aff, Exh. 64 (Lenz Aff. 11- 12).

5
7107708.3

analysis of the Hoboken mayoral race using rhetoric and tone that matched Kim Cardinals argument style, leading some to believe that Cardinal was Red Haven.6 After the failed Marsh mayoral campaign, Plaintiffs stayed active in the Reform movement and helped to elect Reform candidate Theresa Minutillo to the Hoboken Board of Education in April 2006.7 Even then, six years ago, Plaintiffs were monitoring online comments and threatening to sue individuals who were critical of their work as Beth Masons operatives.8 In October 2006, Ricky Mason (Beth Masons exceedingly wealthy husband) created the Political Action Committee Vote Hoboken.9 Both Plaintiffs attended the first public Vote Hoboken meeting, along with 75-100 Reform supporters. Lane Bajardi spoke at length on his vision of future electoral success and demonstrating his undeniable ability to control a message and a room.10 The clear purpose and effect of Vote Hoboken and its substantial financial resources was to split the Reform effort to push Carol Marsh out of her 2nd Ward City Council seat and clear the way for Beth Masons 2009 run for Mayor. With the Plaintiffs assistance, the plan worked perfectly, and Reform effectively split between support for either Carol Marsh or Beth Mason.11 In 2007, Kim Cardinal took an active role in the Board of Education election. The only Reform member of the Board of Education at that time, Theresa Minutillo, personally reached out to Ms. Mason and Kim Cardinal for their support because they had been with Reform for the long haul.12 At the October 2006 Kids First 2007 meeting, Kim Cardinal was tasked

6 7

Id. at 14-15; see also Pincus Aff. 4. Id. at 16. 8 Pincus Aff. Exh. 67 (Soares Aff. 3). 9 The ELEC report is attached as Exh. UU to the Plumb Cert. 10 Pincus Aff. Exh. 64 (Lenz. Aff. 20). 11 Id. at 21. 12 Pincus Aff. Exh. 6.

6
7107708.3

with cleaning up the list of potential candidates who sent their bios to her for revisions.13 In January, Theresa Minutillo, the only sitting Reform/Kids First member of the Board of Education, repeatedly e-mailed Kim Cardinal and Beth Mason requesting their participation.14 Kim Cardinals vocal participation at the Kids First 2007 meetings made it clear to Mike Lenz (another political operative and former City Councilman) that she actually intended to sow discord to keep Kids First from reaching consensus on a ticket. In response, Lenz scheduled a meeting without the Plaintiffs, at which Kids First named four candidates (three of whom would eventually win the election).15 Outraged at Lenzs decision to exclude her, Kim Cardinal summoned several Reform operatives to Beth Masons house where she vented her rage and then threatened to withdraw Vote Hobokens support from the Kids First campaign.16 Despite Vote Hobokens sitting out the campaign, the Kids First candidates continued to perform well. Days before the election, Lane Bajardi contacted Kids First and offered Vote Hobokens support conditioned on the final effort being conducted under his direction. Theresa Minutillo responded directly to Lane Bajardi to thank him for Vote Hobokens endorsement stating: Lane, Thank You so much for your endorsement. We very much look forward to working collaboratively with Vote Hoboken for the success that we both expect to achieve on April 17th.17 Lane Bajardi eventually coordinated the get out the vote effort by Vote Hobokens paid workers, a group from Brooklyn under the direction of Mussa Moore.18

13 14

Pincus Aff. Exh. 3. Pincus Aff. Exh. 6, 11. 15 Pincus Aff. Exh. 64 (Lenz Aff. 24). 16 Id. 17 Pincus Aff. Exh. 15. 18 Pincus Aff. Exh. 64 (Lenz Aff. 25).

7
7107708.3

Plaintiffs also participated as political operatives in the May 2007 City Council campaign. They remained active in the Vote Hoboken PAC, supporting Beth Mason and two other candidates in exchange for substantial financial demands. As Vote Hobokens financial demands increased, the two other candidates severed ties, leaving Vote Hoboken representing only Beth Mason. Lane Bajardi was zealously protective of this role.19 One pointed e-mail exchange during the 2007 election season illustrates the rift in the Reform movement, verifies Mike Lenzs depiction of Kim Cardinals role in the rift, verifies that Lane and Kim were making political decisions for Ms. Mason, and illustrates the venomous tone Lane and Kim bring to Hoboken politics while supporting Beth Mason. In April 2007, Kim Cardinal sent an e-mail to Tony Soares (a former City Councilman who is active in Hoboken politics), copying Beth and Ricky Mason, among others.20 Kim Cardinal wrote: Dear Tony, Please stop with your lies and hate-filled messages Please stop taking everyones energy away from helping their campaigns. Please, just stop. Tony Soares responded by stating that Kim Cardinal had been trying to [politically] assault me for months and that I havent quit anybodys campaign or threatened anybody either. Your small group and its actions are what divided this reform community. A community that was strong in its unity, until you and a few others decided Russo was the power in this town.21 Lane Bajardi responded to the Soares e-mail with an all-bold, page long e-mail which accused Soares of anonymously posting for months that we (including Beth) have been in
19

For example, when Mike Lenz wrote a letter to the editor of the Hudson Reporter endorsing the Reform candidates, including Beth Mason, Lane called Lenz to threaten a lawsuit unless he retracted his endorsement of Beth Mason. Pincus Aff. Exh. 64 (Lenz Aff. 27 29); see also Pincus Aff. Exh. 19 (If Lenz really cared about Beths opinion of the letter he submitted, he would have sent it to her BEFORE sending it to the paper, not the other way around.) 20 Pincus Aff. Exh. 19. 21 Id.

8
7107708.3

league with the Russos with a Secret Deal. It was your way of acting out because you were not party to our decision. He then engaged in name-calling, a Bajardi tactic familiar to City Council attendees, calling Soares a novelty act and a poisonous human being who destroys everything he touches trying to smear and sabotage the Bajardis and Beth Mason. Despite his earlier denial of a secret deal with the Russos (later confirmed by FBI surveillance tapes), Lane Bajardi closed the e-mail by stating that he was tired of lies and smears but if anybody on this email list wants the truth, you know where to find me, and I would appreciate it if you would contact me, Kim, Beth, or whomever else they are smearing before swallowing their words as the gospel truth.22 By 2007, Plaintiffs were being criticized online for their divisive politics, denying their divisive tactics, and misconstruing legitimate criticism as lies and smear, i.e. defamation. B. Plaintiffs Worked as Political Operatives and Anonymously Wrote on Behalf of Councilwoman Mason in the 2009 Mayoral Election The Plaintiffs worked at the highest levels of a Councilwoman Masons mayoral campaign in 2009.23 As detailed in the Pincus Affidavit24 and explained briefly below, Plaintiffs not only worked on a near daily basis for the Mason Mayoral campaign but planned top level strategy, wrote Beth Masons platform, planned at least 26 political events, took primary responsibility for the campaigns internet strategy and communications meetings, provided statements and articles to the press, anonymously posted comments on the internet, encouraged others to anonymously post comments on the internet, wrote the final drafts of the Mason campaign literature, and were subsequently severely criticized for their tone and tactics. Again,
22 23

Id. Pincus Aff. Exh. 65 (Stuiver Aff. 1) (I served as the volunteer campaign manager for Beth Masons mayoral bid in spring 2009. During that time, I worked very closely with Lane Bajardi, Kim Cardinal and other senior political operatives in the Mason organization.) 24 See generally Pincus Aff. Exh. 21 46 (e-mails sent or received by Plaintiffs concerning their work during Masons spring 2009 mayoral campaign).

9
7107708.3

all of the work and criticism predated Ms. Pincus blog. A few examples of Plaintiffs work on the Mason campaign illustrate their roles as Beth Masons operatives and writers. On March 26, Lane Bajardi sent an e-mail to unknown recipients whom he described only as Masonistas to protect their online identities and encouraged the recipients to anonymously post comments on Hoboken 411 [a Mason friendly blog] to criticize Dawn Zimmer.25 On April 16, Ricky Mason (Beth Masons husband) sent a rough draft of Beth Masons response to a campaign questionnaire to Lane Bajardi and another individual to give it the final review [i]n addition to changes in any of the sections, I call your attention to section 1 if there is any way for you guys to look at this tonight and make whatever changes are appropriate that would be great.26 The e-mail (along with many others) confirms that Lane Bajardi writes the final draft of Mason campaign literature. On April 16, Lane Bajardi wrote a long e-mail in which he admitted his role as an anonymous internet commenter supporting Ms. Mason and confirmed his personal involvement in the long-term planning for Ms. Masons political career (i.e., a political operative). Lane Bajardi wrote: So after all this talking, this is Beths position on the Board of Ed race? It is going to play like what it is: a pathetic dodge The bottom line is this: If the plan we had in place originally had been set in motion it would have been a home run. Instead you have given Lenz and Zimmer exactly what they want It will be seen as Beth being political to serve her new bosses. Another sign that Beth has sold out and abandoned her interest in having the best people guiding the education of our children. And you know who gets the blame for all these poor decisions? I do, and Kim does. We are being slandered on the internet because people stupidly think we are the ones advising Beth to make these calls. Better have some bloggers ready to defend this because I am sitting this one out It just confirms their narrative:
25 26

Pincus Aff. Exh. 24. Pincus Aff. Exh. 30 (The exhibit is a chain of e-mails. Ricky Masons e-mail begins on page 4.)

10
7107708.3

Beth doesnt care about reform anymore. Beth will become Mayor by any means necessary, including abandoning what she claims to stand for. (emphasis added).27 On April 23, Ms. Masons campaign manager asked Plaintiffs to clean up a campaign email, again confirming that they write the final draft of Masons campaign literature. Lane Bajardi responded for Plaintiffs and declined to help because he was too busy anonymously writing statements on behalf of others for the Mason campaign and feeding those statements to his press contacts at the Hudson Reporter (Tim Carroll) and Hoboken 411. The e-mail states: Sadly, we cannot. We are both still in our pajamas and still dealing with the fallout from the Maxwells story, among other pressing campaign issues. Just finalized a statement from Raul that is going to Tim Carroll, and working another angle as well before Hoboken411 updates the story with new info tonight after 5pm I cannot commit to taking on another project right now.28 On April 29, Plaintiffs received an e-mail with the subject line Anti Zimmer Flyers asking whether the Mason campaign would be commenting on anonymous midnight flyers distributed throughout Hoboken attacking Dawn Zimmer. Specifically, he asked Do you know about this? Apparently there was some major deal last night and ___ is convinced that Musas guys did the leafleting, so Beth is responsible Sounds like cops were called, Lane came out Dawn was taking pictures, 3:00 a.m. craziness. I told Brian I couldnt imagine Beth would campaign like this and that folks like Cammarano would love to get the two of them going after each other Are you aware of it? Lane Bajardi, who had directed Mussa Moore and his paid employees in their paid get out of the vote efforts on behalf of Vote Hoboken PAC in 2007 and had been on the street at 3 a.m. during the major deal, sent a terse and immediate response, stating:

27 28

Pincus Aff. Exh. 30 (Lane Bajardis e-mail starts on the bottom of page 2). Pincus Aff. Exh. 34.

11
7107708.3

This is not a conversation that should take place via e-mail. Please take it off line. Thanks.29 On May 3, 2009, Lane Bajardi wrote a critical e-mail employing his familiar tactics including name-calling and suggesting that someone had threatened his child, even though no such threat was made. In the e-mail, he admits that Plaintiffs have been working for Ms. Mason since 2005 as part of a long term strategy to get her elected Mayor, that they are the most effective members of Ms. Masons political team, that Bajardis City Council appearances (see below) are made to protect Beth Masons political career, and that, in response to missteps by the campaign, Plaintiffs had been exposed to a slander-laden shitstorm on Hobokens political blogs which they have endured for Beth. The e-mail was written months before Nancy Pincus even started a blog. Specifically, Lane Bajardi wrote: Before you start threatening to forcibly remove women and infants who dont tow your party line from the headquarters youd better get some things straight Kimberly, Sara and I have been working for Beth for a lot longer than just the last few weeks. The often MIA professional team you are defending has dropped the ball at every step of the way while Sara, Kim and I have gotten things done Go look at the slander-laden shitstorm that Kim and I have been the victims of on NJ.com, HobokenNow, RealHoboken, HobokenRevolt and HobokenJournal. Your incident at Maxwells was a blip on the radar compared to what we have endured for Beth. Weve been attacked and threatened by name for over a year and it continues today [W]eve been at City Council meetings fighting the good fight and covering Beths flank for years. While you were off at Camp Wellstone we were working to get Beth elected to the 2nd Ward seat in the first place so she could be in this position today Without Sara, Kim and I there would be NO effort to reach the yuppie voters that The Team has so callously left behind in favor of their all-out push for Old Hoboken votes Dont tell me that stupid midnight fliers claiming Tony Soares will be the new Schools Superintendent under Dawn are going to do it, because they wont
29

Pincus Aff. Exh. 38.

12
7107708.3

-- Lane (italics, enlarged font, bold font, colored font and other emphasis omitted).30 On August 14, 2009, Lane Bajardi sent an e-mail to Ms. Mason in response to a Hudson Reporter story about Mayor Zimmer, in which the Mason campaign manager described Masons campaign as dysfunctional. Lane Bajardi wrote: Kim and I have taken heaploads of abuse from the Zimmerists who have smeared us as THE people who made the decisions that ultimately doomed your campaign. Ive heard back from several in the Zimmer camp that certain people from the Mason camp that went to Dawns side in the runoff routinely blamed those of us who didnt for the mistakes made in the campaign. Through all that much of the attacks on us BY NAME being done publicly in the blogs weve said nothing publicly to defend ourselves because we thought the microscope on the inner workings of your campaign would damage peoples opinion of you as someone who could lead an organization31 Plaintiffs active role in Hobokens 2006, 2007 and 2009 political campaigns alienated them to many participants in Hoboken politics. The e-mails discussed above, and others attached to the Pincus Affidavit, demonstrate that Plaintiffs were blogging anonymously in support of Beth Mason (better have some bloggers ready because I am sitting this one out), had been already recognized online (BY NAME) despite their desire to anonymously participate in blog discussions (sent under cover to several Masonistas to protect their online identities) and were being roundly criticized (slander laden shit-storm) for their political statements and tactics. C. Lane Bajardi Endorsed Mayor Cammarano and Publicly Defended Corruption the Day Before the FBI Arrested Cammarano for Accepting Bribes After Beth Mason lost the Mayoral election, Dawn Zimmer (Reform) and Peter Cammarano (Russo Faction) competed in a June 2009 run-off. During the run-off, the Hudson Reporter published Lane Bajardis letter to the editor on June 7, 2009, endorsing Cammarano

30 31

Pincus Aff. Exh. 44. Pincus Aff. Exh. 47.

13
7107708.3

because Peter [Cammarano] was the only candidate to reach out for [Bajardis] support and counsel after the May election.32 Mr. Cammarano won the election and became mayor on July 1, 2009. Lane Bajardi publicly celebrated the victory alongside Cammarano.33 The Reform-majority City Council promptly voted to transfer authority to appoint Zoning Board of Adjustments (ZBA) members away from the new mayor to the City Council. On July 22, 2009, Lane Bajardi spoke at a City Council meeting arguing against the transfer of authority, stating that the vote was sour grapes and a needless attempt to remove power from the Mayors office its been drafted based on assumptions and innuendo -- I see your internet clowns are here Councilwoman Zimmer -- its been drafted based on assumptions and innuendo that have no basis in fact.34 Six days prior to Mr. Bajardi making those statements to the City Council, Mayor Cammarano had sold two future zoning variances to an FBI informant35 for $25,000.36 The FBI arrested Cammarano the day after Lane Bajardi made his statements to the City Council defending the Russo Faction Mayor / felon.37 Cammarano resigned thirty days after taking office and was eventually sentenced to federal prison.38 D. Ms. Pincus Became Involved in Hoboken Politics, Commented on a Board of Education Decision to Decline Federal Funds and First Encountered Lane Bajardi In 2008, Ms. Pincus started attending Board of Education meetings because her daughter had entered kindergarten in the public school. Two parents she knew decided to run for the

32 33

Plumb Cert. Exh. RR. See Plumb Cert. Exh. QQ (A picture of Bajardi and Cammarano celebrating Cammaranos victory.) 34 See Plumb Cert. Exh. A(1) (video of Bajardi defending Cammarano). 35 As part of the sweeping FBI Bid Rig investigation that jailed Mayor Cammarano, the FBI also recorded Councilman Michael Russo explaining to a wired informant that in exchange for his support, Ms. Mason had agreed to allow him to pick her three at-large City Council members so that, if Beth Mason won, Russo would have total control over the city. Plumb Cert. Exh. OO (Relevant pages of Russo / Dwek transcript). 36 Plumb Cert. Exh. NN (Criminal Complaint filed against Peter Cammarano). 37 See Plumb Cert. Exh. WW. 38 See Id.

14
7107708.3

Board of Education on the Reform supported Kids First ticket. Ms. Pincus offered to create graphics for their 2009 campaign fliers and she also volunteered time towards the campaigns of Maureen Sullivan, Ruth McAllister and Theresa Minutillo. The Kids First slate won the April 2009 election and Reform thereby gained a majority of the Board of Education.39 In December 2009, Ms. Pincus, who has a degree in architecture, was unanimously appointed by the City Council to the Hoboken ZBA and she was sworn into a four-year term on January 1, 2010.40 She started her Grafix Avenger blog in March 2010, primarily posting opinion and satire, through a pro-Reform political lens, addressing the upcoming April 2010 Board of Education election. (Since then, the blog has primarily addressed corruption within the Russo Faction and the political tactics employed by Councilwoman Mason. The site includes a permanent picture of Beth Mason with a Pinocchio nose captioned Recall Beth Mason.) One incident shows the scope of Plaintiffs political involvement and their technique of responding to Ms. Pincus criticism of the Russo Faction by criticizing and intimidating her in public and on the internet. In early April 2010, during a Hoboken Board of Education campaign, Ms. Pincus published an article intensely critical of the Kids First oppositions campaign promise to refuse a federal grant that would have provided laptops to public school students in the 7th and 8th grades who did not have computers at home. Ms. Pincus article was published below a satirical image entitled Turds in a Punchbowl featuring a public domain image, described in the title, with the photoshopped addition of faces of the Russo Factions candidates. Lane Bajardis reaction to the image was public fury. He brought a stack of color copies of the punchbowl image to the April 7, 2010 City Council meeting and handed out copies to the

39 40

Pincus Aff. 3. Pincus Aff. 9-10.

15
7107708.3

press.41 During the televised public comment portion of the meeting, Bajardi passed out color copies of the image to the City Council members and then made a long speech about the stomach turning image published by Ms. Pincus, describing her as a zoning board member appointed by Mayor Zimmer.42 On April 12, 2010 Defendant Roman Brice photographed the audience at a Board of Education forum. According to press reports, Lane Bajardi, one of several individuals in

attendance, responded by assaulting Mr. Brice (shoving him in the chest), knocking him down, and then taking his camera.43 The day after he physically attacked Mr. Brice, Lane Bajardi brought another stack of color copies of the now controversial image to the April 13, 2010 Board of Education meeting. During the public comment period he distributed the images to the Board Members and again started orating an attack against Ms. Pincus. The Board President had no interest in the blog illustration. As Mr. Bajardi became increasingly antagonistic, shouting over Board Members and the Boards Attorney, the Board Attorney advised that the Board President should call the police to have Mr. Bajardi escorted out of the meeting. Faced with the prospect of police intervention, Mr. Bajardi abruptly left the podium.44 A week after he had assaulted Mr. Brice, on April 20, 2010, the Hoboken police arrested Lane Bajardi and charged him with robbery.45 His bizarre, week-long outburst publicly initiated a dispute between the Plaintiffs and Ms. Pincus that started with Mr. Bajardis City Council appearance on April 7, 2010 and continues today.

Pincus Aff. 20-22. Plumb Cert. Exh. A(3) (video of Lane Bajardis April 7, 2010 presentation to the City Council); Pincus Aff. 22. 43 See Plumb Cert. Exh. P, Q. 44 A video of Lane Bajardis Board of Education performance is attached as Exh. A(4) to the Plumb Cert. See also Plumb Cert. Exh. T (Drama at the School Board Meeting); Pincus Aff. 24, 25. 45 See Plumb Cert. Exh. P, Q.
42

41

16
7107708.3

E.

Lane Bajardi Worked to Get Out the Vote in Councilman Occhipintis Potentially Criminal November 2010 Election Campaign After Ms. Mason lost two mayoral campaigns to another Reform candidate, and after the

FBI released tapes of Michael Russo detailing Ms. Masons secret allegiance to the Russo Faction, Ms. Mason publicly allied herself exclusively with the Russo Faction. When the 4th Ward seat election came up in November 2010, Ms. Mason donated $13,400 to the Russo Faction candidate, Tim Occhipinti.46 In that election, the Russo Faction managed to win an inordinate number of votes by mail. In fact, Occhipinti received 399 vote by mail ballots and the incumbent, Mike Lenz received only 43 (an additional 99 vote by mail ballots were not counted). Incredibly, in an election where only 2,076 votes were counted, the Occhipinti campaign employed 575 campaign staffers, most of whom were paid $40. The timely Election Law Enforcement Commission (ELEC) reports (which detail political spending) showed a nearly perfect correlation (79/80) between Occhipintis one-time $40 payments to Admin: Personnel and vote by mail ballots.47 A civil complaint was filed in response to Occhipintis apparent vote-buying scheme.48 In affidavits attached to the complaint, three residents of the 4th Ward swore that they were each offered $40 by the Occhipinti campaign as an incentive to vote absentee. One individual swore that in exchange for $40 he delivered an unsealed vote-by-mail ballot to an Occhipinti campaign worker.49 On election night, Ms. Pincus witnessed and later reported that Lane Bajardi was working for the Occhipinti campaign.50

46 47

Plumb Cert. Exh. VV. Id.; see also ; Plumb Cert. Exh. WW; Pincus Aff. 26. 48 Plumb Cert. Exh. WW (Complaint filed by Friends of Michael Lenz for City Council v. Hudson Country Board of Elections). 49 Id. 50 Pincus Aff. Exh. 59.

17
7107708.3

F.

Ms. Pincus Blogged About Voting Irregularities in the Occhipinti Election and Again Encountered Lane Bajardi Councilman Occhipintis November 2010 4th Ward election gave the Russo Faction a

majority in the City Council, allowing Ms. Mason to become City Council President.51 On November 3, 2010, the day after the election, Ms. Pincus posted a lengthy article addressing questionable tactics used by Tim Occhipintis volunteers and employees. First, she noted that many campaign employees were paid $40 and that those individuals also voted by mail. She also pointed out that Public Safety Director Angel Alicea had abandoned his position monitoring the polls at the same time a large group of Occhipinti volunteers physically blocked access to the polls and intimidated voters trying to access the polls. She also reported that machine voting at the 4-4 voting center was highly skewed towards Occhipinti, sufficiently to tip the election. Finally, she noted that Ms. Masons alliance with the Russo Faction had derailed Reforms progress in Hoboken.52 Within the blog article described above, Ms. Pincus published an image of Ms. Mason wearing a necklace featuring the face of Occhipinti, over text that read Triumph des Shillens. The blog explained that by shilling53 for Occhipinti, Ms. Mason had triumphed in her effort to become City Council President. Cinephiles might recognize that the image thematically recalls posters promoting Triumph des Willens, a 1934 Nazi propaganda film, though the image did not otherwise include Nazi references.54 As with the image illustrating Ms. Pincus disgust with the Board of Education candidates promises to decline a federal grant, Lane Bajardis response to the vote-buying illustration was startling in its intensity and scope.

51 52

See Plumb Cert. Exh. N. Pincus Aff. Exh. 59. 53 A shill is one who makes a sales pitch or serves as a promoter or one who acts as a decoy (as for a pitchman or gambler). To shill is to act as a spokesperson or promoter. Merriam-Websters Online dictionary. 54 Pincus Aff. 28.

18
7107708.3

Bajardi appeared at the November 15, 2010 City Council meeting with an easel and poster board providing a side-by-side comparison of the Triumph des Shillens image and a Triumph des Willens movie poster. At that appearance, Bajardi linked Pincus to Mayor Zimmer and asked to have Ms. Pincus removed from the ZBA.55 Councilwoman Mason also presented the illustration to the N.J. Anti-Defamation League in hopes of garnering a response. Two days later Councilwoman Mason also secured a condemnation letter from her close personal friend and financial supporter Larry Stempler in the name of the National Jewish Democratic Council (NJDC).56 On November 17, 2010, Bajardi carried copies of the letter condemning Ms. Pincus published that day on the NJDC web site to a meeting of the Hudson County Board of Elections.57 Bajardi showed off the letter, bragging that he would use it to destroy Ms. Pincus.58 Bajardis City Council presentation and the NJDC letter he was shopping to the media were both covered by other local media.59 The incidents in the following months demonstrate the political nature of Plaintiffs attacks and the coordinated effort from the Plaintiffs Russo Faction to intimidate and otherwise antagonize Ms. Pincus. A few days after Bajardis City Council presentation, stickers started appearing in Hoboken that said Google Nancy Pincus.60 The day before the May 2011 City Council election, hundreds of midnight flyers were anonymously distributed to front doors, mailboxes and car windshields throughout Ms. Pincus neighborhood highlighting the Triumph
55 56

A video of his appearance is attached to as Exh. A(6) to the Plumb Cert.; see also Plumb Cert. Exh. V. See Hoboken blogger apologizes for Nazi graphic, 'condemned' by National Jewish Democratic Council, Jersey Journal (Nov. 18, 2010) available at http://www.nj.com/hobokennow/index.ssf/2010/11/hoboken_blogger_apologizes_for.html 57 Pincus Aff. Exh. 62 (Siegel Aff.) (according to the Siegel Affidavit, Lane Bajardi wrote the letter published by Beth Masons friends at the NJDC). 58 Id. 59 See Plumb Cert. Exh. V (Did blogger cross line with Nazi parody?); Plumb Cert. Exh. JJ (Did Hoboken Zoning Board members Nazi-parody blog post go too far?) 60 Pincus Aff. 30.

19
7107708.3

des Shillens and punchbowl images.61

The clear message from Plaintiffs City Council

performance to the citywide distribution of stickers and flyers, was that criticism of the Russo Faction, including criticism of potentially criminal election night tactics or promises to deprive public school children free computers, would result in a massive, coordinated, and personal public response from the Russo Faction, all initiated by Lane Bajardi. G. Councilwoman Masons Attempts to Obtain E-Mails Addressed to the Two Named Defendants and 10 Other Individuals Prompted an FBI Investigation into Stolen EMails In April 2011, Beth Mason and Michael Russo drafted a resolution seeking access to all e-mails from the accounts of two City Hall staffers under the pretext of a full investigation into an apparent abuse of tax dollars.62 Ms. Mason later stated that the investigation was necessary because the Citys website had become too politicized.63 In response to cost estimates to review e-mails for privileged communications, Russo and Mason drafted and passed a revised resolution seeking all e-mails between the two City Hall staffers and the two named defendants in this case and 10 other e-mail addresses.64 The out-of-the-blue call for an investigation into the e-mails of two City Hall staffers raised questions within the Mayors office concerning how Councilwoman Mason could possibly know the content of the e-mails she sought to publicize.65 On May 19, 2011, the City Hall Information Technology (IT) offices were padlocked and the City Council

Pincus Aff. 31. Plumb Cert. Exh. AAA. 63 See Mason Wants Mayors Staffers E-Mails to Press, Hoboken Patch, Claire Moses (May 16, 2011) (In the article, Ms. Mason explains that the website is political because it includes a transcript of an FBI surveillance wherein Michael Russo explained to an FBI informant that, in exchange for his support, Ms. Mason had promised that Russo could hand pick her three at-large City Council members.) (available at http://hoboken.patch.com/articles/masonwants-mayors-staffers-e-mails-to-local-press). 64 Plumb Cert. Exh. YY. The resolution passed on June 2, 2011, over objections from Corporate Counsel that it could taint the FBI investigation. See Masons Resolution Asking for Emails Passes, Hoboken Patch, Claire Moses (June 2, 2011) (available at http://hoboken.patch.com/articles/masons-resolution-asking-for-emails-passes). 65 See FBI Raid at City Hall Tied to IT Office Investigation: Corporation Counsel confirms that Zimmer Administration asked FBI to investigate, Hoboken Patch, Claire Moses and John Celock (May 26, 2011) (available at http://hoboken.patch.com/articles/fbi-raid-at-city-hall-tied-to-it-office-investigation).
62

61

20
7107708.3

held a private session addressing reports of a federal investigation into compromised security in the electronic communications within the City.66 On May 26, 2011, the FBI raided City Hall.67 Federal agents removed computers from the IT office and the City suspended two IT employees.68 FBI agents told the Mayor that no more information should be provided to the council or it could compromise the investigation.69 In response, Mason, who hoped to continue her investigation, admitted that she had been in discussions with the FBI agents conducting the investigation: she said, I spoke to the investigators but refused to reveal any further details about the conversation.70 Lane Bajardi spoke at the July 1, 2011 City Council meeting, espousing his conspiracy theory that a phantom IT team had arrived at City Hall to delete the e-mails that Mason and Russo had been demanding.71 That same week, Ms. Mason and the Russo Faction lost their majority in the City Council, ending Ms. Masons six months as City Council President. The new majority closed the Citys e-mail investigation on July 5, 2011, without Ms. Mason receiving the e-mails she sought from City Hall staffers to the two named defendants in this case and 10 other individuals.72 The FBI investigation continued, and on November 7, 2011, the FBI filed a criminal complaint against a City Hall IT staffer, Patrick Ricciardi, in connection with the stolen e-

Id. Id. 68 See Mason Calls Meeting for Briefing on FBI Investigation, Hoboken Patch, Claire Moses (June 13, 2011) (describing the raid and Beth Masons fairly obnoxious call for more information) (available at http://hoboken.patch.com/articles/mason-calls-meeting-for-briefing-on-fbi-investigation). 69 Id. 70 To Meet or Not to Meet, That is the Question, Hoboken Patch, Claire Moses (June 14, 2011) (available at http://hoboken.patch.com/articles/to-meet-or-not-to-meet-that-is-the-question). 71 Plumb Cert. Exh. A(11) (video of Bajardis City Council appearance). 72 Investigation Called by Mason Ends After Council Vote: The New Majority voted on a resolution stating lack of factual information for an investigation into two city employees, Hoboken Patch, Claire Moses (July 5, 2011) (available at http://hoboken.patch.com/articles/investigation-called-by-mason-ends-after-council-vote).
67

66

21
7107708.3

mails.73 The Ricciardi complaint states that the FBI became involved in April 2011 when the Mayors office became suspicious that its e-mails were being leaked to outside parties. According to the complaint, the FBI investigation revealed that Ricciardi had been stealing emails since early 2010 and forwarding them to three individuals, a City municipal officer, a former City municipal officer and a third individual.74 (Note that Ms. Mason started requesting e-mails in April 2011 and sought e-mails dating back to the beginning of the thefts in January 2010.) Ricciardi had been the City Information Systems specialist since 1992, serving under three Russo Faction Mayors.75 The criminal complaint stated that many of the elected and appointed officials in the City retain strong ties to the previous administration including several members of the City Council, as well as high-ranking employees of different City municipal agencies, such as the Public Safety Department .76 The FBI cited postings of articles and comments on City-related issues to different weblogs, or blogs as [e]vidence of [the] schism in the City.77 The Hudson Reporter stated that some believed that council members Beth Mason, Tim Occhipinti, Michal Russo and Theresa Castellano all Zimmer opponents were involved in the incident, they have all denied wrongdoing.78 H. Lane Bajardi Filed a Criminal Complaint In Response to Satire Published by Ms. Pincus, Further Publicizing a Long Running Public Dispute On August 15, 2011, Ms. Pincus published the fourth of nine satirical pen-pal style letters to the FBI concerning its investigation into stolen City Hall e-mails.79 That letter made a joke of

The FBIs Criminal complaint is attached to the Plumb Cert. as Exh. XX. Id. at 7. The Mason and Russo resolution called for the release of e-mails dating back to January 2010. 75 Id. at 3 (RICCIARDI had been employed by the City since in or around 1992 hired under a previous political administration). 76 Id. at 4. 77 Id. 78 Hoboken City Council minority members deny involvement in suspended IT officers alleged hacking of city officialss emails, The Jersey Journal (published on nj.com), Summer Dawn Hortillosa (Nov. 11, 2011) (available at http://www.nj.com/hobokennow/index.ssf/2011/11/hoboken_city_council_minority.html). 79 Pincus Aff. Exh. 60.
74

73

22
7107708.3

the notion that the FBI was taking too long to make further arrests in the stolen e-mail investigation and that Ms. Pincus would apply to join the FBI to accelerate the investigation. Most of the letter is absurd nonsense, as are each of the three prior letters. For example, she

states that in her imagined role as an FBI agent executing judicially approved arrest warrants, she would shoot the door knob of anyone who did not answer the door quickly and apply the Vulcan Death Grip to anyone who resisted her arrests.80 According to the Hudson Reporter, Beth Mason, Tim Occhipinti, and Lane Bajardi filed a criminal complaint against Ms. Pincus for writing the satirical letter.81 In response, the Hoboken Police went to Ms. Pincus home and subjected her to an hour-long interrogation before determining that no threat had been made against the complainants.82 While the previous administrations holdovers on the Hoboken Police Department evidently saw the joke as an opportunity to chill speech concerning their offices receipt of stolen e-mails from the Mayors office, Ms. Mason and her newest political ally, Councilman Occhipinti, saw the joke as a political opportunity. Occhipinti proposed a resolution to remove Ms. Pincus from the ZBA for cause based on her publication of the joke.83 Ms. Pincus received a Rice Notice from the City Clerk in response to the resolution, a procedural safeguard which allows a government employee to avoid public debate regarding employment matters, and Ms. Pincus elected to avoid public debate. Despite the Rice notice, Councilwoman Mason made a four minute scene at a City Council meeting decrying the fact that she could not read for the

Pincus Aff. Exh. 60. Plumb Cert. Exh. CC; Pincus Aff. 59. 82 Pincus Aff. 34. The police department would later be implicated in the e-mail theft by Arch Liston, who testified that the e-mails were being forwarded to Public Safety Director Angel Alicia. See Two unidentified Hoboken officials mentioned in FBI probe are identified, Hudson Reporter (Oct. 12, 2012) (available at http://www.hudsonreporter.com/view/full_story/20474660/article--Report--Two-unidentified-Hoboken-officialsmentioned-in-FBI-probe-are-identified-?instance=home_Most_popular) 83 Pincus Aff. 59.
81

80

23
7107708.3

public record the prepared speech she had brought to the meeting to attack Ms. Pincus.84 Ultimately, Ms. Pincus maintained her position on the ZBA, and the entire episode demonstrated Lane Bajardi and Beth Masons coordinated efforts to punish and silence bloggers critical of their political schemes through abuse of a criminal complaint and by protesting laws safeguarding public employees. I. For Years Lane Bajardi Spoke at City Council Meetings to Promote Councilwoman Masons Political Career As discussed above, Lane Bajardi has admitted that he attends and speaks at City Council meetings to protect Beth Mason. He has also admitted that he is subject to substantial criticism and ridicule for those performances (among other political acts). A small sample of those performances highlights, in part, why the Plaintiffs are so roundly criticized. Lane Bajardis City Council appearances can be briefly summarized: name calling, yelling, ethnically charged attacks, threats to post his complaints anonymously on the internet, absurd conspiracy theories, and outright lies. Some of his appearances are summarized below (the video of these

appearances, attached to the Plumb Cert. at Exh. A, illustrate Bajardis combative tone and the public controversy he engenders): On July 22, 2009, Lane Bajardi spoke at the City Council meeting against a vote to shift authority to name ZBA members from Mayor Cammarano to the City Council. Lane Bajardi called the ordinance sour grapes and when he was roundly booed by the public in attendance he said your internet clowns are here Councilman Zimmer.85

84

The video of Beth Masons outbursts at the September 7, 2011 City Council meeting are attached as Exhibit A(13) to the Plumb Cert. 85 A video of Lane Bajardi speaking out in favor of Mayor Cammarano retaining his ability to control the ZBA just days before Cammarano was arrested for accepting bribes to fix real estate deals is attached as Exh. A(1) to the Plumb Cert.

24
7107708.3

On October 21, 2009, Lane Bajardi spoke at the City Council meeting to criticize ZBA appointments. When he was told that his time was up, he asked Mayor Zimmer to answer some questions. The public comment period is not a question and answer session, but when she did not respond, he yelled into the microphone, Congratulations! Youre a sham!86

On April 7, 2010, Lane Bajardi spoke at the City Council meeting to criticize one of Ms. Pincus blog illustrations. He asked that Ms. Pincus be removed from the ZBA.87

On April 13, 2010, Lane Bajardi spoke at the Board of Education meeting to criticize one of Ms. Pincus blog illustrations. He shouted over Board members until they threatened to call the police.88

On November 4, 2010, Lane Bajardi brought a video camera to a City Council meeting in which Tim Occhipinti was sworn in. After the meeting, Lane Bajardi calmly videotaped an altercation between Michael Holmes, a prominent Russo-Mason supporter, threatening to fight Forde Prigot, a Reformer and friend of the Mayor. Bajardi calmly recorded as Holmes tells Forde to put up your hands so youll see how fast youll go down before being pulled away from the altercation by other Russo-Mason supporters.89

On November 15, 2010, Lane Bajardi addressed the City Council to criticize Ms. Pincus for another blog illustration.90

On December 15, 2010, Lane Bajardi addressed the City Council criticizing Mayor Zimmers ridiculous incompetence on display for all the world to see for procedural delays relating to an NFA letter. He then demonstrated his willingness to divide Hoboken along ethnic lines and to address political issues through an ethnically biased framework when he said: I guess

86 87

A video of Lane Bajardi calling Dawn Zimmer a sham is attached as Exh. A(2) to the Plumb Cert. A video of Lane Bajardis presentation is attached as Exh. A(3) to the Plumb Cert. 88 A video of Lane Bajardis presentation is attached as Exh. A(4) to the Plumb Cert. 89 A video of Lane Bajardi videotaping the altercation is attached as Exh. A(5) to the Plumb Cert. 90 A video of Lane Bajardis presentation is attached as Exh. A(6) to the Plumb Cert.

25
7107708.3

Dawn Zimmer and Mr. Cunningham dont have vowels at the end of their names so its not incompetence.91 On January 5, 2011, Lane Bajardi spoke at the City Council attacking the Zimmer administration and Hoboken Business Administrator Arch Liston for memos that Bajardi stated had been distributed to city employees. Mr. Liston responded by asking Beth Mason, This is unbelievable. Youre going to let him lie?92 On January 10, 2011, Lane Bajardi spoke at a City Council identifying a Hoboken resident as one of the most vile public posters on the internet, slandering people left and right. In response to warnings that the City Council did not wish to be fact witnesses to his slander Bajardi stated that he would be happy to republish on some blog somewhere the incredibly hostile commentary to himself and members of this council.93 On April 5, 2011, Lane Bajardi spoke to the City Council, stating (without any factual basis) that Mayor Zimmer was protected from the FBI Bid Rig arrests because of her cozy relationship with Governor Christie and that Mike Lenz had been bribed in the same manner as Mayor Camarrano. City Councilwoman Marsh admonished Beth Mason (the City Council President) for allowing Bajardi to make his baseless allegations and then told Bajardi [i]f you want to accuse someone of a crime then I suggest you call the prosecutors office. Bajardi concluded, to jeers from the public in attendance, by telling Councilwoman Marsh to Go back to Jersey City with your friends there -- many of whom got rounded up -- and tell me about your concern about corruption.94

A video of Lane Bajardis ethnically based attack on Hobokens Mayor is attached as Exh. A(7) to the Plumb Cert. 92 A video of Lane Bajardis presentation is attached as Exh. A(8) to the Plumb Cert. 93 A video of Lane Bajardis statements is attached as Exh. A(9) to the Plumb Cert. 94 The video of Lane Bajardis five minute outburst is attached as Exh. A(10) to the Plumb Cert.

91

26
7107708.3

On July 1, 2011, Lane Bajardi spoke to the City Council to insult Mayor Zimmers employees, local bloggers, and various members of the City Council, and to advance his own conspiracy theory about a phantom IT team deleting the e-mails that Beth Mason had been requesting for months.95

J.

Internet Commenters Using Pseudonyms prosbus and Curious Gal Promoted Beth Mason and Criticized Nancy Pincus in the Same Manner as Plaintiffs Had Done Previously and the Comments Otherwise Appear to be Authored by the Plaintiffs On or about October 24, 2011, the screen name prosbus and Curious Gal appeared on

blogs commenting on Hoboken politics. Lane Bajardi no longer appeared at City Council meetings. But, as discussed below, prosbus spoke in a voice strikingly similar to Lane Bajardis, Curious Gal spoke in a voice strikingly similar to Kim Cardinals, and both espoused views supportive of Beth Mason and critical of Mayor Zimmer, Theresa Minutillo, and Ms. Pincus. Significantly, both prosbus and Curious Gal repeatedly referred back to the three incidents that Lane Bajardi had used to publicly criticize Nancy Pincus: (1) the Nov. 2010 Triumph des Shillens image accompanying her criticism of Beth Masons support for Tim Occhipintis potentially criminal get out the vote efforts; (2) the April 2010 punchbowl image accompanying criticism of the Mason supported school board candidates promises to deny lowincome public school 7th and 8th graders laptops that would have been paid funded by a federal grant; and, (3) the August 2011 satirical FBI: Letter 4 which stated that if she were to become an FBI agent Ms. Pincus would use the Vulcan Death Grip to subdue anyone resisting arrest.96 The only people in Hoboken who feigned outrage in response to all three publications were Lane

95 96

A video of Lane Bajardi voicing his conspiracy theory is attached as Exh. A(11) to the Plumb Cert. Pincus Aff. 5.

27
7107708.3

Bajardi and Beth Mason. Also, it is unique to Lane Bajardis message discipline to consistently tie Nancy Pincus to Mayor Zimmer, Theresa Minutillo, and other elected Reform politicians.97 After Lane Bajardi publicly criticized Ms. Pincus, prosbus and Curious Gal began rehashing his three issues.98 Prosbus also linked to the same NJDC article that Lane Bajardi had linked to posting under his own name on November 18, 2010 post.99 Based on these similarities, and her knowledge that Lane Bajardi is the only person in Hoboken who has sought to destroy her,100 Ms. Pincus reasonably formed the opinion that Lane Bajardi and Kim Cardinal are Curious Gal and prosbus (and that they share those pseudonyms). Additional evidence supporting Ms. Pincus theory that Lane Bajardi is prosbus and Kim Cardinal is Curious Gal includes: Despite the continual identification of Plaintiffs as prosbus and Curious Gal since late 2011, the Plaintiffs have never, prior to service of this lawsuit, contacted Ms. Pincus to inform her that they are being misidentified in the blog comments. (And prosbus and Curious Gal have never denied being Plaintiffs.)101

See Plumb Cert. Exh. A(3) (video of Bajardi at City Council: Pincus, not a big financial contributor to the Zimmer campaign, instead part of the stealth negative campaign); Plumb Cert. Exh. A(4) (video of Bajardi at Board of Education: Ms. Minutillo proudly identified Ms. Pincus as quote our graphic designer); Plumb Cert. Exh. A(6) (video of Bajardi at City Council: This graphic was created by Nancy Pincus for her political attack blog which she uses to lash out at any citizen who dares to disagree with Mayor Dawn Zimmer and her allies on the Council and the Board of Education.). Compare Plumb Cert. Exh. LL, pp. 104, 106 (Zimmer appointed Zoning Board member Nancy Pincus), 107 (Nancy Pincus=Zimmer Appointed Member of the Hoboken Zoning Board), 108; and compare Plumb Cert. Exh. MM, pp. 26 (it is ridiculous to think Zimmer did not approve the appointment of Pincus), 27 (Nancy Pincus (Dawn appointed Hoboken Zoning Board member)). 98 Plumb Cert. Exh. LL, pp. 100 (no need for an off centered Nancy Pincus talking about feces), 104 (This is not time for Dawn to allow Nazi imagery, a denouncement by the National Jewish Democratic Association, an investigation by the Hoboken police concerning death threats to an elected official and a bowl of feces to get in the way of a political alliance and friendship with Zoning Board member Nancy Pincus.), 107, 108; Plumb Cert Exh. MM, p. 26 (We are talking about improper imagery used by an appointed public official which included Nazi propaganda, feces, and bodily harm.). 99 Pincus Aff. Exh. 69. 100 Pincus Aff. Exh. 62 (Siegel Aff.) 101 Pincus Aff. 49.

97

28
7107708.3

Despite the continual identification of Plaintiffs as prosbus and Curious Gal since late 2011, the Plaintiffs never contacted the editor of the Hoboken Patch, Claire Moses, to have the alleged misidentification comments removed (this fact is known by virtue of the fact that the comments have not been deleted and the statements can still be viewed online).

Curious Gal and prosbus are consistently critical of Mayor Zimmer, Theresa Minutillo, and Nancy Pincus and consistently supportive of Beth Mason, mirroring the Plaintiffs publicly and privately expressed criticism and support.102

Curious Gal has sometimes responded to comments addressing her simply as Kim.103 On one occasion Curious Gal responded to a post addressing her as Kim and then immediately deleted that post.104

Curious Gal had knowledge of this defamation lawsuit before it was served on the defendants.105

Curious Gal started hinting that a lawsuit was in the works on July 20, 2012, six days before the lawsuit was filed. Plumb Cert. Exh. MM, p. 23 (Sometimes lawsuits are necessary when people act reprehensibly.) Prosbus hinted at the lawsuit as early as May 2, 2012. Plumb Cert. Exh. KK, p. 90 (Grafix Avenger It is encouraging to see more attention being paid concerning your blogging antics and your appointed municipal position Good luck in defending yourself-).

See Exh. LL and KK to the Plumb Cert. Exhibit LL includes 299 comments posted by Curious Gal on Hoboken Patch from June 3, 2012 to Sep. 27, 2012. Of those comments, 87 are critical of Mayor Zimmer, 75 are explicitly critical of Kids First, 15 are critical of Theresa Minutillo, and 9 are supportive of Beth Mason, and 14 are critical of Ms. Pincus. Exhibit KK includes 299 comments posted by prosbus on Hoboken Patch from April 13, 2012 to Sep. 2, 2012. Of those comments, 62 are critical of Mayor Zimmer, 43 are explicitly critical of Kids First, 26 are critical of Theresa Minutillo, 1 is supportive of Beth Mason, 2 are supportive of Tim Occhipinti and 8 are critical of Ms. Pincus. 103 Pincus Aff. 52-53. 104 Pincus Aff. 53. 105 See Plumb Cert. Exh. MM, p. 23 (Sometimes lawsuits are necessary when people act reprehensibly.)

102

29
7107708.3

On July 20, 2012, six days before the complaint was filed by Plaintiffs Ohio counsel, in the middle of a heated on-line exchange of comments between Curious Gal and the Defendants in this case, an Anonymous commenter appeared and started citing Ohio defamation law and stating that I hear a similar case is brewing in Hoboken.106

Curious Gal refers to the City Councils vote to shift authority over the ZBA from Cammarano to the City Council as sour grapes, the same description that Lane Bajardi used while defending Cammaranos corruption before the City Council. Compare Plumb Cert. Exh. A(1) and Pincus Aff. Exh. 68.

Curious Gal states that People who dont know their history are condemned to repeat it (Plumb Cert. Exh. LL, p. 80, Curious Gal statement posted to Hoboken Patch at Aug. 5, 2012 at 11:08 pm) which echoes Lane Bajardis statement that those who ignore their mistakes are doomed to repeat them (Pincus Aff. Exh. 44).

Curious Gal and Kim Cardinal both refer to Mayor Zimmer in the diminutive as simply Dawn. Compare Pincus Aff. Exh. 27 (Should we be making Dawn publicly state who she will replace with in the 4th Ward?) and Plumb Cert. Exh. LL p. 20, 27, 28, 35, 36, 37, 39, 40, 41, 45, 46, 48, 49, 54, 60, 61, 65, 67, 75, 76 (candidate Dawn), 77 (Councilwoman Dawn), 79, 80, 85, 87, 88 (Dawns legacy), 93, 94, 95 (Dawn and her bloggers accept no responsibility), 96, 97, 99, 100, 103, 104 (Nancy Pincus was appointed by Dawn), 108, 111 (Dawns history of discrimination), 113, 114, 115, 116, 117, 118.

Lane Bajardi stated at a City Council meeting that Dawn Zimmer and Peter Cunningham dont have vowels at the end of their names so its not incompetence. Plumb Cert. Exh. A(7). Curious Gal stated that Dawn knows best when it comes to these issues. After all,

Id., p. 23 (There was a case in Ohiol last year where people on a blog were calling out someone like they do Lane and Kim).

106

30
7107708.3

she doesnt have a vowel at the end of her last name that makes her smarter and more knowledgeable than many of us. Plumb Cert. Exh. LL, p. 112 (posted to Hoboken Patch at 1:54 pm on Monday, July 2, 2012). Lane Bajardis e-mails confirmed that he was anonymously commenting on-line in support of Ms. Mason.107 Prosbus and Curious Gal are two of a handful of anonymous on-line commenters who consistently support Ms. Mason. One of Nancy Pincus sources, Mike Lenz, had concluded and publicly stated that Kim Cardinal posted under the pseudonym Red Haven, a now little used internet identity.108 Red Haven no longer posting raised speculation concerning Kim Cardinals new pseudonym. Kim Cardinal is a well-known Mason supporter and in many comment threads prosbus and Curious Gal are the only commenters supporting Ms. Mason, suggesting that Kim Cardinal had adopted those pseudonyms. Other commenters collective assessment that Curious Gal and prosbus are Plaintiffs.109 On March 15, 2012, Ms. Pincus posted an article laying out the timeline of Lane Bajardis support for Mayor Cammarano and Mayor Cammaranos criminal acts and arrest. The next day, after her comments with links to that post were repeatedly deleted and reposted, prosbus posted a comment stating that he would stop participating in politics and Ive given up writing for other sites Ive had it with my wife.110 The self-description of prosbus as a married man who supports Beth Mason, wrote for other websites, and was troubled by

Pincus Aff. Exh. 30 (Better have some bloggers ready to defend this because I am sitting this one out.) Pincus Aff. Exh. 64 (Lenz Affidavit 13-15); Pincus Aff. 4. 109 See, for example, Plumb Cert. Exh. BBB (This could generate some excitement in Edgewater with CuriousKim/Prosbus. Also, a chance to play the race card is always exciting for Kimmy.; Wow Kim, how long since you moved away?). 110 Pincus Aff. 56.
108

107

31
7107708.3

allegations that Lane Bajardi had defended Peter Cammaranos corruption, all suggested that prosbus is Lane Bajardi. On January 10, 2011, former City Councilman Mike Lenz stated during a City Council meeting that the Plaintiffs anonymously blog on the internet, that they have done more than any other human being in this city to lower the standard of public debate and that their anonymous blogging is a cancer.111 The relatively small size of the Hoboken community which actively supports the Russo Faction provides a limited list of potential identities for Curious Gal and prosbus. ARGUMENT I SUMMARY JUDGMENT IS THE PREFERRED METHOD FOR DISPOSING OF DEFAMATION LAWSUITS New Jersey has long recognized that summary judgment practice is particularly wellsuited for the determination of libel actions, the fear of which can inhibit comment on matters of public concern. Lynch v. New Jersey Educ. Assn, 161 N.J. 152, 169 (1999), citing Dairy Stores, Inc. v. Sentinel Publg Co., 104 N.J. 125, 157 (1986); see also G.D. v. Kenny, 205 N.J. 275, 304-05 (2011) ([A] timely grant of summary judgment in a defamation action has the salutary effect of discouraging frivolous lawsuits that might chill the exercise of free speech on matters of public concern.); Maressa v. New Jersey Monthly, 89 N.J. 176, 196 (1982) (The perpetuation of meritless actions, with their attendant costs, chills the exercise of [free speech]. To avoid this, trial courts should not hesitate to use summary judgment procedures where appropriate to bring such actions to a speedy end.).

111

Pincus Aff. 4.

32
7107708.3

When a defamation complaint involves public figures or matters of public interest, summary judgment should be granted, dismissing the complaint, if a reasonable jury could not find that the plaintiff could establish actual malice by clear and convincing evidence. Lynch, 161 N.J. at 169, citing Anderson v. Liberty Lobby, 477 U.S. 242, 255-56 (1986). In opposing a motion for summary judgment, the clear and convincing standard in a defamation action adds an additional weight to the plaintiffs usual preponderance of the evidence burden. Durando v. The Nutley Sun, 209 N.J. 235, 253 (2012) (dismissing defamation claim concerning false statements because plaintiffs failed to establish a jury question concerning actual malice by clear and convincing evidence), quoting Costello v. Ocean Cnty. Observer, 136 N.J. 594, 615 (1994). Actual malice is decided by the court as a question of law. Lynch, 161 N.J. at 168, citing Harte Hanks Commcns Inc. v. Connaughton, 491 U.S. 657, 685 (1989). To establish actual malice, a plaintiff must show that a statement was published with a high degree of awareness of [its] probable falsity and must approach the level of publishing a knowing, calculated falsehood. Id. at 165. Neither errors of interpretation of judgment nor misconceptions are sufficient to create a jury issue of actual malice. Lawrence v. Bauer Pub. & Printing Ltd., 89 N.J. 451, 477 (1982) (dismissing a defamation suit because public figure plaintiffs could not establish that defendants knew that defamatory publications were false or that defendants actually doubted their accuracy). Based on the documents attached to the Plumb Cert. and the Pincus Affidavit, as described throughout this memorandum of law, the Court could find, at this juncture, that the Plaintiffs cannot establish by clear and convincing evidence that the complained of statements that assert facts rather than opinion, if any (see below), in whole or in part, were published with knowledge that they were false. Misconceptions and errors of interpretation or judgment

33
7107708.3

published by Ms. Pincus, if any, were based on the tremendous public record of comments critical of Plaintiffs which they did not dispute for years but rather endured for Beth [Mason].112 If Plaintiffs can somehow establish that the online identities at issue are not theirs, the Plaintiffs total silence concerning their online identities or alleged lack of online identities, despite the e-mails discussed above further establishes that Ms. Pincus could not know that her statements were false. II PLAINTIFFS MUST ESTABLISH ACTUAL MALICE TO RECOVER DAMAGES BECAUSE THEY ARE PUBLIC FIGURES AND THE COMPLAINED OF STATEMENTS ADDRESS ISSUES OF PUBLIC INTEREST Undisputed facts demonstrate that the Plaintiffs are public figures, the statements address matters of public concern, and that actual malice cannot be proven. Summary judgment is therefore appropriate at this time. A. The Actual Malice Standard Discourse on political subjects and critiques of the government will always fall within the category of protected speech that implicates the actual-malice standard. W.J.A. v. D.A., 210 N.J. 229, 244 (2012), quoting Senna v. Florimart, 196 N.J. 469, 496-97 (2008) (internal quotes omitted). The actual malice standard represents a profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attack[s]. Lynch, 161 N.J. at 166 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Individuals who participate in the political arena must expect that the debate will sometimes be rough and

112

See Plumb Cert. Exh. 44; see also Plumb Cert. Exh. 47 (Kim and I have taken heaploads of abuse from the Zimmerists Through all that much of the attacks on us BY NAME being done publicly in the blogs weve said nothing publicly to defend ourselves because we thought the microscope on the inner workings of your campaign would damage peoples opinion of you) (emphasis supplied).

34
7107708.3

personal. Id., quoting Harte Hanks, 491 U.S. at 687. Politics is no place for the meek and thin-skinned. Maressa, 89 N.J. at 200. As a matter of law in New Jersey, [r]eaders know that statements by one side in a political contest are often exaggerated, emotional and even misleading. Lynch, 161 N.J. at 166, quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 32 (1990) (Brennan, J., dissenting). Private individuals who become so involved in matters of public interest such that they become public figures for a limited range of issues may not maintain a defamation action without establishing that the statements at issue were published with actual malice. Dairy Stores, Inc., 104 N.J. at 138, citing Gertz v. Robert Welch, Inc., 418 U.S. 323, at 351-52 (1974); see also Sisler v. Gannett Co., 104 N.J. 256, 274 (1986) (Applying the actual malice standard to a private individual who knowingly engaged in conduct that one in his position should reasonably know would implicate a legitimate public interest and distinguishing New Jersey law as providing greater protection of free speech than federal defamation law.)113 In New Jersey, a matter is of public interest when an individual voluntarily and knowingly engaged in conduct that one in his position should reasonably know would implicate a legitimate public interest, engendering the real possibility of public attention and scrutiny. Dairy Stores, 104 N.J. at 144, quoting Sisler, 104 N.J.at 274. The actual malice standard is applied in accordance with First Amendment principals to [t]hose who step into areas of public dispute, who choose the pleasures and distractions of controversy. Wilson v. Grant, 297 N.J. Super. 128, 139 (App. Div. 1996). Such participants in public disputes must be willing to bear criticism, disparagement and even wounding assessments because the First Amendment prohibits the Court from mak[ing] public dispute safe and comfortable for all the participants. Id.

The plaintiff held to the actual malice standard in Sisler was a private, retired banker who had received a large loan from his former employer.

113

35
7107708.3

Public figure status is a matter for determination by the court. See Lawrence, 89 N.J. at 462. In determining whether an individual is a public figure, courts examine (1) the degree to which a party has participated in a particular activity to determine whether the participation was voluntary and with a purpose to influence the outcome; (2) the degree of exposure a party had in the press; (3) the extent to which that party had access to the media to have a more realistic opportunity to counteract false statements than private individuals enjoy; and (4) plaintiffs past conduct and the public reaction to his conduct. Vassallo v. Bell, 221 N.J. Super. 347, 368 (1987) (internal quotes omitted). B. Plaintiffs Are Public Figures in Hoboken Politics 1. Plaintiffs have voluntarily participated in Hoboken politics with a purpose of influencing outcomes

Lane Bajardi is one of the most publicly visible political operatives in Hoboken. Lane Bajardi has routinely attended City Council meetings to make lengthy comments either supporting Beth Mason or Peter Cammarano, or criticizing the Mayor or Ms. Pincus. City Council meetings are televised and Lane Bajardis frequent criticism at City Council meetings is recorded and generally available on the internet. Futhermore, Lane Bajardi tends to be present during contentious political events in Hoboken, including the anti-Zimmer midnight flyers incident, the Occhipinti voting irregularities, and the altercation outside City Hall after Occhipinti became a City Council member.114 Plaintiffs must also establish actual malice prior to any award of damages because of Lane Bajardis additional voluntary efforts to influence politics which are often designed to spark public interest. A sample list of Lane Bajardis participation in politics demonstrates that

Videos of a sample of these appearances attached as Exh. A to the Plumb Cert. and detailed in the Background, Sec. I, above.

114

36
7107708.3

he has taken voluntary actions as a political operative intended to effect political outcomes and engender legitimate public interest, including: a. Working on the Mayoral campaign of Carol Marsh.115

b. Working in the Reform movement to elect Theresa Minutillo to the Board of Education in 2006.116 c. Working for, publicly speaking for, otherwise acting as the public face of the Vote Hoboken Political Action Committee.117 d. Arranging the Vote Hoboken endorsement of Kids First Board of Education candidates.118 e. Signing-up to be a poll challenger on behalf of Kids First.119 f. Coordinating an action plan for Kids First, including a get out the vote effort that involved paid employees under the direction of Mussa Moore.120 g. Supporting Beth Mason, via the Vote Hoboken Political Action Committee, throughout the May 2007 City Council campaign.121 h. Protecting Beth Mason, by criticizing former City Councilman Tony Soares and denying a secret agreement between Beth Mason and Michael Russo.122

Pincus Aff. Exh. 64 (Lenz Aff. 11-13). Id. (Lenz Aff. 17). 117 Id. (Lenz Aff. 19-21); see also Pincus Aff. Exh. 6, 11, 15. 118 Id. (Lenz Aff. 23-25); see also Pincus Aff. Exh. 15, 16, 17, 18. 119 Pincus Aff. Exh. 14; Pincus Aff. Exh. 16 (please put me down as one of your challengers for election day). 120 Pincus Aff. Exh. 15 (Lane, Thank you so much for your endorsement. We very much look forward to working collaboratively with Vote Hoboken for the success that we both expect to achieve on April 17th. I just spoke with randy and he asked me to reach out to you to help facilitate how Vote Hoboken is going to help support Kids First. he mentions a few areas: - website flyers gotv [get out the vote]); Pincus Aff. Exh. 16 (We are working on a proposed action plan. We will be in touch with specifics ASAP.); Pincus Aff. Exhs. 17, 18. 121 Pincus Aff. Exh. 19 (I have been out on the streets for Beth and Dawn, and no other candidates.); 122 Id. (You have been anonymously posting for months that we (including Beth) have been in league with the Russos with a Secret Deal. It was your way of acting out like a little child your novelty act has worn thin you are a poisonous human being who destroys everything he touches If anybody on this e-mail list wants the truth, you know where to find me).
116

115

37
7107708.3

i. Operating as the Mason 2009 Mayoral campaigns principle liaison with Hoboken411, a local blog that coordinated its anti Zimmer messaging with the Mason campaign.123 j. Working as one of five individuals (including Kim Cardinal) on the Beth Mason internet strategy in Masons 2009 Mayoral campaign.124 k. Urging anonymous individuals whom he refers to as other Masonistas to post anonymous comments on Hoboken 411 to criticize Mayor Zimmer.125 l. Attending a meeting to prepare candidates prior to the April 14, 2009 forum for at-large City Council seats.126 m. Providing edits to campaign literature including campaign e-mails and questionnaires.127 n. Anonymously blogging in support of Beth Masons political campaign.128 o. Writing statements for the Hudson Reporter (via his contact there, Tim Carroll) and writing for Hoboken411 (via his contact there, Perry Klaussen) publicizing an altercation between Beth Masons campaign manager and Mike Lenz.129

Pincus Aff. Exh. 65 (Stuiver Aff. 2); see also Pincus Aff. Exh. 67 (Soares Aff.). Pincus Aff. Exh. 22. 125 Pincus Aff. Exh. 24 (This message has been sent under cover to several Masonistas to protect their online identities People should be posint on that thread with their thoughts to keep it alive. If you have a moment today, please weigh in with your thoughts). 126 Pincus Aff. Exh. 29. 127 Pincus Aff. Exh. 30 (E-mail from Ricky Mason to Lane Bajardi and one other individual: Attached are draft answers to the Revolt questionnaire I would love for you both to give it the final review look at this tonight and make whatever changes are appropriate, so that it can be submitted tomorrow to Revolt and put up on Beths website); Pincus Aff. Exh. 39 (Lane Bajardi writes Mason platform); Pincus Aff. Exh. 41 (Lane, Attached is the content of our latest email blast to go out tomorrow morning As always, Im open to change, if you have the time, take a look and your changes are what will be sent.). 128 Id. (E-mail from Lane Bajardi to Ricky Mason: Better have some bloggers ready to defend this because I am sitting this one out.); see also Pincus Aff. Exh. 31 (E-mail from Thomas Bertoli to Lane Bajardi and Kim Cardinal: Hoboken 411 has now posted the Dawn Zimmer deps. Spread the word and lets own the first comments page.). 129 Pincus Aff. Exh. 34 (Just finalized a statement from Raul that is going to Tim Carroll, and working another angle as well before Hoboken411 updates the story with new info tonight after 5pm); see also Pincus Aff. Exh. 65 (Stuiver Aff. 2, 4) (Lane Bajardi and Kim Cardinal were in charge of Mrs. Masons organized internet/blogging
124

123

38
7107708.3

p. Developing a list of poll challengers for the Mason campaign.130 q. Shutting down a discussion addressing midnight flyers distributed throughout Hoboken attacking Mayor Zimmer because This is not a conversation that should take place via e-mail.131 r. Drafting Beth Masons campaign platform.132 s. Campaigning for first ward votes by handing out literature.133 t. Working for Beth Mason for a lot longer than the just the last few weeks and being one of three people in the Mason campaign who have gotten things done.134 u. Attending City Council meetings fighting the good fight and covering Beth [Mason]s flank for years.135 v. [W]orking to get Beth [Mason] elected to the 2nd Ward seat in the first place so she could be in this position today [running for Mayor].136 w. Working as one of three individuals in the Mason campaign to reach the yuppie voters.137 x. Advising Beth Mason regarding future endorsements.138

strategy they operated as the campaigns principle liaisons with Hoboken411, a local blog that coordinated its anti Zimmer messaging with the Mason campaign). 130 Pincus Aff. Exh. 37 (E-mail from Lane Bajardi: Im working on a list of additional names, addresses and WARD AND DISTRICT which is also needed.). 131 Pincus Aff. Exh. 38. 132 Pincus Aff. Exh. 39 (E-mail from Lane Bajardi addressing the Mason Team Platform: Top stuff is what I wrote working with Beth for years. Bottom stuff is adjusted from the Revolt questionnaire.). 133 Pincus Aff. Exh. 42. 134 Pincus Aff. Exh. 44 (E-mail from Lane Bajardi: Kimberly, Sara, and I have been working for Beth for a lot longer than just the last few weeks Kim and I have gotten things done.); see also Pincus Aff. Exh. 39 (working with Beth for years). 135 Pincus Aff. Exh. 44 (E-mail from Lane Bajardi: weve been at City Council meetings fighting the good fight and covering Beths flank for years). 136 Id. 137 Id.

39
7107708.3

y. Providing counsel to Peter Cammarano and endorsing Cammarano in his Mayoral campaign.139 z. Speaking out at a City Council meeting criticizing the Councils vote to remove from Mayor Cammaranos office his ability to name members to the ZBA, just days before Mayor Cammarano was arrested for selling zoning variances.140 aa. Covering Beth Masons flank by criticizing Ms. Pincus at a City Council meeting for gross humor illustrating criticism of Board of Education candidates.141 bb. Covering Beth Masons flank by criticizing Ms. Pincus at a Board of Education meeting for gross humor illustrating her criticism of Board of Education candidates.142 cc. Publicly supporting the Tim Occhipinti campaign and working the get out the vote effort for Tim Occhipintis 2010 City Council campaign.143 dd. Covering Beth Masons flank by criticizing Ms. Pincus at a City Council meeting for an image illustrating her criticism of Beth Masons monetary support for Tim Occhipintis potentially criminal get out the vote efforts.144 ee. Covering Beth Masons flank by criticizing Mayor Zimmer and other reform candidates at the March 23, 2011 Hoboken Municipal Hospital Authority meeting.145
Pincus Aff. Exh. 46 (E-mail from Beth Mason to Lane Bajardi, Kim Cardinal and others: I would like the opportunity to meet with you on Sunday evening to discuss where we are and complete the discussion on endorsements.). 139 Plumb Cert. Exh. RR (Lane Bajardis endorsement of Peter Cammarano). 140 Plumb Cert. Exh. A(1). 141 Plumb Cert. Exh. A(3) (video of Bajardis City Council statements); Pincus Aff. Exh. 44 (weve been at City Council meetings fighting the good fight and covering Beths flank for years). 142 Plumb Cert. Exh. A(4). 143 Plumb Cert Exh. N (news report describing Lane Bajardi as an Occhipinti supporter); Pincus Aff. Exh. 59 (Triumph des Shillens blog article describing Bajardis participation in Occhipintis get out the vote efforts). 144 Plumb Cert. Exh. A(6) (video of Lane Bajardis City Council presentation); Pincus Aff. Exh. 44 (weve been at City Council meetings fighting the good fight and covering Beths flank for years).
138

40
7107708.3

Kim Cardinals years of political activism on behalf of Beth Mason, described in the background section above, clearly demonstrate her role as a public figure in Hoboken politics based on her voluntary choice to engage in political conduct with a purpose of influencing political outcomes. A brief list recapping some of those voluntary acts includes: a. Attending political meetings and otherwise volunteering for the Carol Marsh Mayoral campaign.146 b. Attending Vote Hoboken Political Action Committee meetings.147 c. Attending Kids First 2007 Board of Education campaign meetings to choose a slate of candidates.148 d. Meeting with Board of Education member Theresa Minutillo to address issues that exist between the Vote Hoboken Political Action Committee and the Kids First candidates.149 e. Reviewing the bios of Kids First candidates for editing and suggestions.150 f. Calling a meeting at Beth Masons residence to threaten to withhold Vote Hoboken PAC support from the Kids First candidates.151 g. Attacking former City Councilman Tony Soares for his supposed anonymous criticism and for divulging that Beth Mason had entered into a secret deal with Michael Russo.152

Pincus Aff. Exh. 66 (Kurta Aff. 4-6). Pincus Aff. Exh. 64 (Lenz Aff. 11-13). 147 Id.(Lenz Aff. 19-21). 148 Pincus Aff. Exh. 3 (Kim Cardinal is tasked to clean up the list of candidates for Kids First), Exh. 4 (Kim Cardinal is invited to a strategy meeting for the upcoming school board and city council meetings), Exh. 5 (Kim Cardinal receives Dec. 2, 2006 Kids First meeting minutes), 12, 13. 149 Pincus Aff. Exh. 6 (an e-mail from Theresa Minutillo to Kim Cardinal and Beth Mason asking them to participate in the final selection of candidates); Exh. 11 (an e-mail from Theresa Minutillo to Kim Cardinal explaining that she would like to meet with Kim Cardinal and Beth Mason to put to bed any concerns or issues that may exist). 150 Pincus Aff. Exh. 12 (Candidates: send your bios to Kim for editing and suggestions). 151 Pincus Aff. Exh. 64 (Lenz Affidavit 24).
146

145

41
7107708.3

h. Arranging a Vote Hoboken PAC Presidential Debate event to raise the profile of Vote Hoboken PAC. 153 i. Explaining to Beth Mason the need for a political internet strategy and then being one of five individuals (including Lane Bajardi) who attended Beth Masons internet strategy meetings.154 j. Assuming authority to cancel communications meetings for the Mason Mayoral campaign.155 k. Scheduling at least 26 campaign events for Beth Masons Mayoral campaign.156 l. Attending Moms for Mason coffee meetings and revising the agenda for Mason Mayoral campaign meetings.157 m. Spending an entire day in her pajamas dealing with the fallout from the Maxwells story, among other pressing campaign issues.158 n. Participating in the Mason campaigns Dear Neighbor letter, which distributes 5,000 letters throughout Hoboken.159 o. Campaigning for first ward votes by handing out literature.160 p. Spending an entire day at the Mason campaign headquarters giving her time and effort for [Beth Masons] mess of a campaign.161

Pincus Aff. Exh. 19 (Dear Tony, Please stop with your lies and hate-filled messages Please stop taking everyones energy away from helping their campaigns. Please, just stop.). 153 Pincus Aff. Exh. 21. 154 Pincus Aff. Exh. 22 (E-mail from Beth Mason: Kim was gracious enough yesterday to call me and send up a flag and I think she is right that a small group of us needs to either pull a conference call together this weekend or spend 30 minutes discussing how we will approach the internet in the coming weeks). 155 Pincus Aff. Exh. 23 (Im having difficulty getting everyone to the 10am communications meeting so Im going to cancel and reschedule for later this week.). 156 Pincus Aff. Exh. 26 (Everyone, These are all of the events I have scheduled). 157 Pincus Aff. Exh. 32. 158 Pincus Aff. Exh. 34 (we are both still in our pajamas and dealing with the fallout from the Maxwells story, among other pressing campaign issues). 159 Pincus Aff. Exh. 35. 160 Pincus Aff. Exh. 42.

152

42
7107708.3

q. Meeting with Kids First candidate Theresa Minutillo, on behalf of Beth Mason, and, with Beth Mason sitting by silently while Kim Cardinal insulted put down and criticized Ms. Minutillo on behalf of Beth Mason, for not acknowledging support that Beth Mason had provided Kids First over the years.162 r. Posting political internet comments as Red Haven for years.163 s. Working for Beth Mason for a lot longer than just the last few weeks and gotten things done for the Mason campaign.164 t. Covering Beth Masons flank for years.165 u. Working to get Beth Mason elected to the 2nd Ward seat [in 2007] so she could be in this position today [running for Mayor in 2009].166 v. Working as one of three individuals within the Mason campaign to reach the yuppie voters.167 w. Advising Beth Mason on endorsements.168 x. Conducting opposition research via OPRA requests in support of the 2010 Occhipinti City Council campaign.169

Pincus Aff. Exh. 44 (E-mail from Lane Bajardi: Ast he man who stayed home all day Saturday with my infant so that my wife could give her time and effort for this mess of a campaign). 162 Pincus Aff. Exh. 63 (Minutillo Aff.); see also Pincus Aff. Exh. 30 (E-mail from Ines Garcia Keim to Mason supporters: I think when Beth and Kim sat down with her [Minutillo], she was more concerned with protecting Dawn than in getting Beths support. She also did not bring her running mates to the meeting, which I find curious.; E-mail from Lange Bajardi to Mason supporters: Theresa [Minutillo] and company have already put out their side of the story on the meeting with Beth last week, and she is getting killed already over it.). 163 Pincus Aff. Exh. 64 (Lenz Affidavit 14-15). 164 Pincus Aff. Exh. 44. 165 Id. 166 Id. 167 Id. 168 Pincus Aff. Exh. 46. 169 Pincus Aff. 106-110; Pincus Aff. Exh. 48 - 58.

161

43
7107708.3

As is the case with Lane Bajardi, for years Kim Cardinal has been an incredibly active political operative in Hoboken in support of Beth Mason and others of the Russo Faction. Every aspect of her role in politics was voluntary and clearly intended to influence politics and spark legitimate public interest. 2. Plaintiffs Have Had Significant Exposure in the Press

Plaintiffs have also had significant exposure in the local press for their role as a campaign operatives. Since September 2009, no fewer than 31 articles have been published referencing Lane Bajardi and his role in Hoboken politics. Within those articles, the authors have referred to Lane Bajardi as: (1) a council critic;170 (2) resident[] critic;171 (3) local politico;172 (4) one of Masons most vocal supporters;173 (5) a frequent critic of the administration;174 (6) a frequent critic of Zimmer;175 (7) a frequent speaker at public meetings;176 (8) a serial council speaker;177 (9) a supporter of Occhipinti;178 (10) a regular commentator on Hobokens political scene;179 (11) allied with some of Zimmers political opponents;180 (12) an outspoken critic;181 (13) a local politically involved Hoboken resident;182 (14) part of the political back-and-forth in Hobokens heated politics;183 (15) one of the few critics of the new administration of Mayor Dawn Zimmer;184 (16) a vocal critic;185 (17) an ardent Mason

170 171

Plumb Cert. Exh. B. Plumb Cert. Exh. C. 172 Plumb Cert. Exh. D. 173 Plumb Cert. Exh. E. 174 Plumb Cert. Exh. F, K; see also Plumb Cert. Exh. G (a frequent critic of the current mayoral administration). 175 Plumb Cert. Exh. I. 176 Plumb Cert. Exh. J. 177 Plumb Cert. Exh. L. 178 Plumb Cert. Exh. N. 179 Plumb Cert. Exh. O. 180 Id. 181 Plumb Cert. Exh. P. (also describing Bajardi as the outspoken political critic). 182 Plumb Cert. Exh. Q. 183 Id. 184 Id. 185 Plumb Cert. Exh. R, V.

44
7107708.3

supporter;186 (18) Hoboken political activist Lane Bajardi;187 (19) a vocal fixture at local government and school board meetings;188 (20) a close Mason ally and frequent critic of the Zimmer administration;189 (21) often critical of the mayors allies;190 and (22) less-than-shy political operative Lane Bajardi.191 Kim Cardinal has, at times, made public comments on politics that have been reported in the press, including her public comments addressing various development projects in Hoboken.192 3. Plaintiffs Have Access to the Press and Can Otherwise Counteract False Statements

Plaintiffs have ample access to the press. Lane Bajardi writes letters to the editor, endorsing political candidates, which are published in their entirety. On June 7, 2009, after Beth Mason ran a distant third in the Mayoral campaign but before the runoff between Zimmer and Cammarano, the Hudson Reporter published his lengthy letter to the editor endorsing Peter Cammarano for Mayor. In that letter he admits that he is a public figure in Hoboken politics, stating that he was already a familiar face at council meetings and that viewers know that he often criticizes the City Council. In that endorsement he also stated that despite his criticism Peter [Cammarano] was the only candidate to reach out for my support and counsel after the May election. As hes done many times before, Peter listened to my opinions .193 On October 25, 2009, the Hudson Reporter published Lane Bajardis letter to the editor in support of

186 187

Id. Plumb Cert. Exh. S; see also Plumb Cert. Exh. T (Local political activist Lane Bajardi). 188 Plumb Cert. Exh. U. 189 Plumb Cert. Exh. AA. 190 Plumb Cert. Exh. BB. 191 Plumb Cert Exh. DD. 192 Plumb Cert. Exh. GG, HH. 193 Plumb Cert. Exh. RR.

45
7107708.3

Beth Mason. The letter is a mix of harsh criticism of Dawn Zimmer and lavish praise for Beth Mason.194 Plaintiffs have demonstrated their ability to counteract false statements made on the internet. For example, Plaintiffs initiated Beth Masons internet strategy for her 2009 Mayoral campaign, posted to the internet anonymously in support of Beth Mason, have a team of Masonistas who anonymously post comments on the internet when so directed by the Plaintiffs, and have contacts for getting statements published at the Hudson Reporter (via Lane Bajardis contact Timothy Carroll) and at Hoboken 411 (via Lane Bajardis contact Perry Klaussen).195 Tellingly, after Plaintiffs filed their complaint, their slanted version of the case was presented in several local news outlets, including the breaking news coverage provided by Hoboken411.196 Furthermore, in the context of this defamation lawsuit, which exclusively involves blogs and blog comments (and one e-mail addressing those comments), anyone can counteract false statements by merely adding a comment to a blog and rebutting others arguments. After all, none of the complained of statements made it to traditional press until Plaintiffs filed their lawsuit. For reasons that are not at all clear, Plaintiffs have never posted comments under their own names rebutting the complained of statements despite their publicly stated monitoring of multiple Hoboken political blogs.197 (And prosbus and Curious Gal have never denied being

Pincus Aff. Exh. 70. Pincus Aff. Exh. 24 (Masonistas); Pincus Aff. Exh. 34 (Bajardi detailing his interactions with the media); Pincus Aff. Exh. 65 (Stuiver Aff. 2,4) (explaining that Bajardi was the Mason campaigns conduit to Hoboken 411); Pincus Aff. Exh. 67 (Soares Aff.). 196 See Plumb Cert. Exh. II; Pincus Aff. 5 (excerpts from Hoboken411 Exclusive: The ENTIRE Zimmer Blogger Lawsuit); Pincus Aff. Exh. 1 (Hoboken411 articles parroting Bajardis City Council talking points); Pincus Aff. 4 (statements made by former City Councilman Mike Lenz at a City Council meeting stating, I firmly believe he [Bajardi] writes everything thats on Hoboken411). See also Pincus Aff. Exh. 67 (Soares Aff. 5) (I always perceived Mr. Bajardi as an inner circle political operative who had content control of Hoboken411). 197 See Plumb Cert. Exh. A(3) (video of Lane Bajardi at a City Council meeting announcing that his lawyers are monitoring blog comments); Pincus Aff. Exh. 19 (You have been anonymously posting for months that we
195

194

46
7107708.3

Lane Bajardi and Kim Cardinal and have never denied being paid to post comments to the internet even when such denials would have bolstered the persuasiveness of their arguments. The one time Curious Gal responded to questions concerning whether she was paid, she seemed to confirm that she was paid, when she stated I would gladly post my comments for free. I trust that answers your question. See Plumb Cert. Exh. KK, p. 76.)198 4. Plaintiffs Past Conduct has Engendered Legitimate Public Response

For years, the Plaintiffs have operated in Hoboken politics and they have been openly and roundly criticized for their divisive tactics. After they divided the Reform community and secretly aligned with the Russo Faction, they refuted allegations that they had done precisely that as lies and claimed they were being smeared.199 After they perceived that the Mason Mayoral campaign had made irreparable mistakes, they claimed that they were being slandered on the internet because people stupidly think we are the ones advising Beth to make these calls.200 When the Mason Mayoral campaign was running behind in the closing days of the election, Lane Bajardi detailed his support for Beth Mason and claimed that the Plaintiffs had

(including Beth) have been in league with the Russos); Pincus Aff. Exh. 30 (And you know who gets the blame for all these poor decisions? I do, and Kim does. We are being slandered on the internet because people stupidly think we are the ones advising Beth to make these calls.); Pincus Aff. Exh. 44 (Go look at the slander-laden shitstorm that Kim and I have been the victims of on NJ.com, HobokenNow, RealHoboken, HobokenRevolt and HobokenJournal.); Pincus Aff. Exh. 47 (Kim and I have taken heaploads of abuse from the Zimmerists who have smeared us as THE people who made the decisions that ultimately doomed your campaign much of it BY NAME being done publicly in the blogs); Pincus Aff. Exh. 67 (Soares Aff. 3) (Bajardi stated that: Beth and I are going to own your condo.). 198 Also note that the anonymous press that appears in Hoboken before elections is plainly sympathetic to Plaintiffs, echoing their public statements and using the illustrations Plaintiffs created to criticize Ms. Pincus. For example, as discussed above, after Lane Bajardi publicized Ms. Pincus Triumph de Shillens image, midnight flyers distributed throughout Hoboken echoed those points publicly raised by Lane Bajardi. The November 2012 Board of Education election has also involved anonymous press attacking Ms. Pincus. First, midnight flyers addressed the issues that Lane Bajardi had initially made public and also referenced the (false) allegation in the complaint that Ms. Pincus had somehow threatened the Plaintiffs child. And, just a few weeks ago, a van with five jumbo television screens was anonymously commissioned to display an anonymous, two minute attack ad criticizing Ms. Pincus for the same three issues raised by Lane Bajardi, employing the same side-by-side comparison of images that Lane Bajardi brought to the November 15, 2010 City Council meeting. (A video of the Nazi Trucks video attacking Ms. Pincus is attached as Exh. A(12) to the Plumb Cert.) 199 Pincus Aff.. Exh. 19. 200 Pincus Aff. Exh. 30.

47
7107708.3

endured for Beth a slander-laden shitstorm that arose in response to their political action.201 After Mason lost the election, Plaintiffs again acknowledged criticism for the mistakes they made in the campaign, stating Kim and I have taken heaploads of abuse from the Zimmerists who have smeared us as THE people who made the decisions that ultimately doomed [the] campaign.202 For years, the Plaintiffs have not only participated in Hoboken politics but have been roundly criticized for the mistakes they made in advising Beth Mason in her futile mayoral campaigns. C. Lane Bajardi is a General Purpose Public Figure Subject to the Actual Malice Standard Lane Bajardi is an on-air anchor for 1010WINS, the CBS New York AM radio channel.203 1010WINS is an icon of the NYC-metro region as the longest running all news station in the country.204 As one of just 11 anchors for this non-stop 24/7/365 New York City based news station, Lane Bajardi is clearly a public figure. Bajardi has been a public figures for over a decade. Before becoming an anchor at 1010WINS, from 1996 to 1999, Lane Bajardi presented the 1010 WINS Moneywatch reports every weekday morning. He also spent a decade reporting and anchoring radio and television programs for Bloomberg, broadcasting live from various financial institutions. He has also anchored and produced small business and personal finance shows and presented radio and TV shows for WPIX in New York, WGN in Chicago, and WFTC in Minneapolis. His voice has been heard on hundreds of radio stations across the country.205

201 202

In their e-mails, as in their complaint, Plaintiffs confuse legitimate political criticism with slander. Pincus Aff. Exh. 47. 203 See http://newyork.cbslocal.com/station/1010-wins/ (photos of 11 anchors with Bajardi in the first row); see also http://newyork.cbslocal.com/personality/lane-bajardi/ (Bajardis 1010WINS bio). 204 Id. 205 A copy of Lane Bajardis 1010WINS bio is available at http://newyork.cbslocal.com/personality/lane-bajardi/ (Bajardis 1010WINS bio). A copy of Lane Bajardis resume is attached as Exh. YY to the Plumb Cert.

48
7107708.3

Lane Bajardi was or is also a public official, appointed by former Mayor Roberts as the Chairman of The Observer Highway Advisory Committee.206 An individual who was once a public official will be considered a public official for the purposes of the application of the actual malice standard for as long as his or her actions are newsworthy and a matter of lively public interest. Van Englen v. Broadcast News Networks, Inc., Nos. CIV 96-2503, CIV 96-2583, 1997 WL 406267 (D.N.J. 1997), citing Rosenblatt v. Baer, 383 U.S. 75, 87 n. 14 (1966). D. The Fair Comment Actual Malice Standard Applies to Statements Addressing Plaintiffs Roles as Political Operatives and Other Matters of Public Interest Fair comment is a qualified privilege for matters of public interest, and the defense of fair comment regarding matters of public interest can be overcome only by proof of actual malice. Dairy Stores, 104 N.J. at 150. A defendant who makes statements involving matters of public concern is subject to the qualified privilege, which may be overcome only on the showing that defendant authored the statements with knowledge of their falsity or reckless disregard of the truth. Vassallo v. Bell, 221 N.J. Super 347, 373 (App. Div. 1987) (Fair comment doctrine extends to virtually all matters of legitimate public interest, and goes beyond matters of opinion to statements of fact.) (citing Dairy Stores, Inc., 104 N.J. at 147-48). The threshold for a matter to be of public interest is low. See Rossi v. CBS Corp., No. L-1135-07, 2012 WL 2529357 (App. Div. 2012) (assistant little league coach yelling at a player is a matter of public interest); Sisler, 104 N.J. at 260, 268 (private figure former bankers procurement of loan from his former employer is a matter of public interest); Vassallo, 221 N.J. Super at 372 (how the mayor and his political associates dealt with municipal employees is a

206

See Observer Hwy bldg. can rise 9 stories, not 12 Council votes against bigger maximum on old garage property, Tom Jennemann, Hudson Reporter (Aug. 22, 2006) (Observer Highway Advisory Committee chairman Lane Bajardi, who lives in the neighborhood, said that the current plan that maximizes the property value) (available at http://www.hudsonreporter.com/view/full_stories_home/2409550/article-Observer-Hwy-bldg-can-rise9-stories--not-12-Council-votes-against-bigger-maximum-on-old-garage-property).

49
7107708.3

matter of public interest); Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149, 156 (2000) (school teachers behavior on a class trip is a matter of public interest). All of the complained of statements relate to Plaintiffs roles in Hoboken politics which are matters of public interest, thereby implicating the actual malice standard for each complained of statement. The topics addressed in the complaint are also matters of public interest which independently implicate the actual malice standard. For example, many of the statements involve the FBI investigation of e-mail thefts at City Hall, which is a matter of public interest that involves both politics and violation of federal laws. See Compl. 31, 38, 87. Other statements address theories concerning what pseudonyms the Plaintiffs are posting under. See Compl. 41, 47, 52, 56, 59, 62, 65, 77, 84, 87, 103, 118, 121. Plaintiffs have admitted to anonymously posting on-line in support of Beth Masons political campaigns and that they have worked for years in constant campaign mode supporting Beth Mason.207 Accordingly,

statements addressing what pseudonyms Plaintiffs are currently using in support of Beth Masons political career address matters of public interest. Likewise, given their history of contentious participation in Board of Education campaigns, whether or not the Plaintiffs support public schools and members of the board of education is a matter of public interest. See Compl. 56, 59, 62, 71, 74. Finally, the question of whether or not Plaintiffs are paid by Ms. Mason is a matter of public interest. See Compl. 41, 74, 87, 118. The City Council has publicly debated whether

Pincus Aff. Exh. 30 (Bajardi stating better have some bloggers ready to defend this because I am sitting this one out); Pincus Aff. Exh. 24 (Bajardi encouraging fellow Masonistas to anonymously post comments on the internet); Pincus Exh. 44 (Bajardi explaining that Plaintiffs worked to get Ms. Mason elected to the 2d Ward so that she could run for Mayor and that Plaintiffs have been at City Council covering Beths flank for years).

207

50
7107708.3

Ms. Mason pays her anonymous political writers.208 The Plaintiffs have reportedly described themselves as the only professional political operatives in Hoboken.209 The judge in a recent criminal harassment trial found that Councilwoman Mason pays another political operative (who is not listed on Mason ELECs) through her 501(c)(3) to do Ms. Masons political work, a judicial finding that raises the inference that Mason likely also pays her other operatives.210 During Lane Bajardis most active stretch of political work, he did not appear to have any other jobs and his resume does not list any jobs during that period.211 Whether Councilwoman Mason paid her two closest and fiercest political operatives, is clearly a matter of public interest. III STATUTE OF LIMITATIONS The statute of limitations on actions for defamation in New Jersey is one year. N.J.S.A. 2A:14-3; see also Churchill v. State, 378 N.J. Super. 471 (App. Div. 2005) (single publication rule applies to internet publications). Accordingly, the statements in Complaint 18 (published June 8, 2011), 22 (published June 16, 2011), and 25 (published July 11, 2011) are time barred and non-actionable because the complaint was not filed until July 26, 2012.
In December 2010, Beth Mason and City Business Administrator Arch Liston got into an argument during a public, televised City Hall meeting when Ms. Mason strongly objected to a vaguely described $600 item within Hobokens approximately $100 million annual budget. At that meeting, Business Administrator Arch Liston revealed that he believed Beth Mason pays someone substantial amounts to write her political material. Specifically, after Beth Mason read a prepared speech objecting to the $600 expenditure, the City Council discussion proceeded as follows: Liston: Ill bet you spent more than $600 to have someone write that for you. Mason: Excuse me? Bhalla: Hold on, hold on. Mason: All due respect, I write my own stuff, Mr. Liston. Liston: Oh, I believe that. (A video of the exchange is attached as Exh. A(15) to the Plumb Cert.) The e-mails from Beth Masons campaign clearly demonstrate that Councilwoman Mason was lying when she said, I write my own stuff. In fact, those emails demonstrate that the Plaintiffs write her stuff. In summary, former Hoboken Business Administrator Arch Liston stated at a public meeting that Ms. Mason makes substantial payments to have someone write her political material and the e-mails from Beth Masons campaign reveal that Plaintiffs write Beth Masons political material. 209 Pincus Aff. Exh. 20 (I spoke with Lane & Kim as well in the stairwelllearned that they are the professional ones in Hoboken and that everybody just does not understand them). 210 Plumb Cert. Exh. SS (State of New Jersey v. Calicchio criminal harassment hearing excerpts). 211 Plumb Cert. Exh. YY (Bajardi resume).
208

51
7107708.3

IV THE COMPLAINED OF STATEMENTS ARE NOT DEFAMATORY In New Jersey, defamation is the publication of false statements which injure the reputation of another. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 765 (1989). Slander or libel per se, subcategories of defamation which do not require proof of special damages, apply where statements of fact charge the commission of a crime, a loathsome disease, affect a person in his business, or impute unchastity to a woman. MacKay v. CSK Publishing Co., Inc., 300 N.J. Super. 599 (App. Div. 1997) (describing slander or libel per se as applied to charges that an individual had committed consumer fraud).212 The threshold issue in a defamation lawsuit is whether the statement at issue is reasonably susceptible of a defamatory meaning. Ward v. Zelikovsky, 136 N.J. 516, 528 (1994). Whether a particular statement is defamatory depends on its content, verifiability and context. Lynch, 161 N.J. at 167 (1999). Content must be judged, not by its literal meaning but by its objective meaning to a reasonable person of ordinary intelligence. McLaughlin v.

Rosania, Bailets & Talamo, Inc., 331 N.J. Super. 303, 312 (App. Div. 2000). Verifiability refers to whether a statement can be proven true or false, and statements that are not verifiable, such as insults and name-calling, even if offensive, are not defamatory. Lynch, 161 N.J. at 167.

Similarly, opinions are not actionable unless they imply false and defamatory underlying facts. Id. Context is also examined because it bears upon the fair and natural meaning of a

statement. Id. at 168.

212

Plaintiffs second cause of action asserts a claim for defamation per se. Internet expressions are treated as libel in New Jersey which makes the slander per se requirements, which are necessary to pursue presumed damages in a slander action, inapplicable. See W.J.A. v. D.A., 210 N.J. 229, 240 (2012). Where public figures or matters of public interest are concerned, presumed damages are not available absent proof of actual malice. Id. at 241-42. In all other matters, presumed damages are limited to nominal damages. Id. at 249. The Complaint only alleges negligent publication (Complaint 156) and, therefore, the Plaintiffs have not stated a cause of action for statements relating to public figures or matters of public interest.

52
7107708.3

All of the complained of statements fall into one or more of the non-actionable categories of speech described below. A. The Content of the Complained of Statements Makes Them Non-Defamatory 1. Statements that Are Not Of and Concerning Plaintiffs Are Not Actionable

For a comment to be of and concerning a plaintiff, it must include such reference to him that those who read or hear the libel reasonably understand the plaintiff to be the person intended. Dijkstra v. Westerink, 168 N.J. Super 128, 133 (App. Div. 1979). The absence of identifying language in [a] statement compels courts to reject defamation claims. Ditzel v. Univ. of Medicine and Dentistry of New Jersey, 962 F.Supp. 595 (1997). Plaintiffs cannot state a claim for defamation based on Complaint Paragraph 28 (Dear FBI: Letter No. 4) or Complaint Paragraph 56 (Who Luvs Ya, Al?), because the complained of statements are not of and concerning Plaintiffs. 2. True Statements Are Not Actionable

Truth is absolutely protected speech. G.D. v. Kenny, 205 N.J. at 293. Truths that are personally embarrassing or offensive to some are no less protected than other truths. Id. at 303. In establishing the truth of a statement, defamation law overlooks minor inaccuracies, focusing instead on substantial truth. Id. at 294, citing Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991). A court must evaluate a statement as a whole to determine the impression it will make on a reader, and minor inaccuracies do not amount to falsity so long as the gist of the libelous charge is justified. Id. Plaintiffs bear the burden of proving that statements are not substantially accurate. Id. at 304. Accordingly, Plaintiffs cannot state a defamation claim based on assertions that they are political operatives because those assertions are true. (See Complaint Par. 31, 41, 47, 52, 56, 77,

53
7107708.3

87, 118.) Political operative is not a defined phrase213 but the appropriate definition of operative is a person who works toward achieving the objectives of a larger interest < political operatives >. See Merriam Webster On-Line Dictionary. As detailed at length in the actual malice section above (Point II. C, D), Plaintiffs have spent years working towards achieving larger political interests, including furthering the political career of Councilwoman Mason. Accordingly, the true statements asserting that Plaintiffs are political operatives are not actionable defamation. Likewise, stating that Lane Bajardi works at 1010WINS and is an on-air anchor cannot be the basis for a defamation complaint because that statement is also true. See Complaint Par. 84, 99, 121. In assessing substantial truth a court must compare the gist or sting of the alleged defamatory statement to the actual truth. G.D. v. Kenny, 205 N.J. at 294. As explained below, Ms. Pincus assertion that Plaintiffs post anonymously as Curious Gal and prosbus is substantially true and not actionable. See Complaint Par. 31, 41, 47, 52, 56, 59, 62, 65, 77, 84, 87, 103, 118, 121. The first step in determining whether a statement is substantially true is identifying the gist or sting of the statement. In this case, the gist or sting is that (1) Plaintiffs anonymously post to the internet and (2) Plaintiffs support Beth Mason and criticize Kids First, Mayor Zimmer, and Ms. Pincus.214 The second step in determining whether a statement is substantially

See Websters Unabridged Dictionary, 2d Ed. (no definition for political operative); Blacks Legal Dictionary, 9th Ed. (no definition for political operative). 214 See Exh. LL and KK to the Plumb Cert. Exhibit LL includes 299 comments posted by Curious Gal on Hoboken Patch from June 3, 2012 to Sep. 27, 2012. Of those comments, 87 are critical of Mayor Zimmer, 75 are explicitly critical of Kids First, 15 are critical of Theresa Minutillo, and 9 are supportive of Beth Mason, and 14 are critical of Ms. Pincus. Exhibit KK includes 299 comments posted by prosbus on Hoboken Patch from April 13, 2012 to Sep. 2, 2012. Of those comments, 62 are critical of Mayor Zimmer, 43 are explicitly critical of Kids First, 26 are critical of Theresa Minutillo, 1 is supportive of Beth Mason, 2 are supportive of Tim Occhipinti and 8 are critical of Ms. Pincus.

213

54
7107708.3

true is comparing the gist or sting to the actual truth. As to whether the Plaintiffs anonymously post to the internet, the truth of that assertion has been established based on e-mails from the 2009 Mayoral election,215 conversations between the Plaintiffs and other local political operatives,216 and from public comments made by Lane Bajardi at City Council meetings.217 As to whether the Plaintiffs support Beth Mason and criticize Mayor Zimmer, Kids First, and Ms. Pincus, the truth of that assertion is likewise established by e-mails authored by the Plaintiffs,218 public statements made by the Plaintiffs,219 and internet comments authored by the Plaintiffs under their own names, and further supported by the affidavits accompanying this memorandum.220 Because the gist or sting of the assertion that Plaintiffs post as Curious Gal and prosbus is true, the statement is substantially true and non-actionable.

See Pincus Aff. Exh. 30 (Better have some bloggers ready to defend this because I am sitting this one out.); Pincus Aff. Exh. Exh. 24 (This message has been sent under cover to several Masonistas to protect their online identities People should be posting on that thread with their thoughts to keep it alive); see also Pincus Aff. Exh. 31 (e-mail from another Mason supporter encouraging Plaintiffs to own the first comments page). 216 Pincus Aff. Exh. 64 (Lenz. Aff. 15). 217 Plumb Cert. Exh. A(9) (video of Lane Bajardi stating at a City Council meeting that he would republish on some blog somewhere the incredibly hostile commentary to himself and members of this counsel). 218 See, for example, Pincus Aff. Exhs. 27, 30, 44, 46, 47. 219 Zimmer: Pincus Aff. Exh. 70 (Bajardi endorsing Mason over Zimmer); Plumb Cert. Exh. A(1) (Bajardi stating at a City Council meeting, your internet clowns are here Councilman Zimmer); Plumb Cert. Exh. A(2) (Bajardi stating to at a City Council meeting to Mayor Zimmer, Congratulations! Youre a sham!); Plumb Cert. Exh. A(7) (Bajardi stating at a City Council meeting that Mayor Zimmers ridiculous incompetence was on display for all the world to see). Minutillo: Pincus Aff. Exh. 63 (detailing Kim Cardinals harsh criticism of Kids First board member Theresa Minutillo. Pincus: Plumb Cert. Exh. A(3); Plumb Cert. Exh. A(5). 220 Pincus Aff. 19; Pincus Aff. Exh. 62 (Siegel Aff.) (Lane said it would destroy Nancy.); Pincus Aff. Exh. 63 (Minutillo Aff. 3) (For the next 20 minutes or so, Kim Cardinal insulted me, put me down and criticized me on behalf of Beth Mason, as Beth Mason sat silently by); Pincus Aff. Exh. 64 (Lenz Aff. 40) (Press contacts confirm off the record that Lane continues to spin against Zimmer); Pincus Aff. Exh. 65 (Stuiver Aff.) (describing Plaintiffs as senior political operatives of the Mason organization in charge of Mrs. Masons organized Internet/blogging strategy the campaigns principle liasons with Hoboken411, a local blog that coordinated its anti Zimmer messaging with the Mason campaign); Pincus Aff. Exh. 66 (Kurta Aff. 5 (Bajardi stated that Mayor Dawn Zimmer only attends Authority meetings when she has called the media to take pictures of her giving speeches Bajardi was more concerned that the sale would help the Mayors political standing than he was that my candidacy would harm the sale process and the institution); Pincus Aff. Exh. 67 (Soares Aff. 5) (I always perceived Mr. Bajardi as an inner circle political operative who had content control of Hoboken 411 as well as serving as one of Mrs. Masons most trusted advisors on message and debates.).

215

55
7107708.3

3.

Statements Not Susceptible of a Defamatory Meaning Are Non-Actionable

Whether the meaning of a statement is susceptible of a defamatory meaning is a question of law for the court. Ward, 136 N.J. at 529 (citing Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982)). Statements that are not reasonably susceptible of a defamatory meaning are not actionable defamation. Id. Plaintiffs allege that they are defamed by statements alleging they are paid by Councilwoman Mason. See Compl. 41, 74, 87, 118. But stating that individuals who have publicly worked for years to advance Ms. Masons political career are paid for their efforts is not defamatory.221 Receiving payment from Ms. Mason or her political organizations does not expose an individual to hatred, contempt or ridicule. Romaine v. Kallinger, 109 N.J. 282, 289 (1988). Rather, Plaintiffs close association with Beth Mason, her politics of division, and her alliance with the Russo Faction exposes Plaintiffs to contempt from the Reform Faction in Hoboken without regard to whether or not they are paid for their efforts.222 In fact, Plaintiffs were roundly criticized for their support of Beth Mason long before Beth Masons undisclosed payments to her political operatives became a topic of public interest and long before Ms. Pincus started her blog.223

221 Should this litigation continue after resolution of this motion based on a finding that Ms. Pincus asserted a fact concerning Plaintiffs IRS reports, Ms. Pincus would seek to prove the truth of that fact by reviewing the necessary financial documents including Plaintiffs tax returns, bank statements, earnings statements and all other financial documents from 2005 through the present. 222 And even if being paid by Beth Mason could possibly injure Plaintiffs, Ms. Pincus has established a good faith basis for asserting that Lane Bajardi is paid. See II.D, above. Plaintiffs simply cannot establish that Ms. Pincus alleged that Lane Bajardi is paid with knowledge of that statements falsity as is required by the actual malice standard. Furthermore, because Plaintiffs have never communicated with Ms. Pincus under their own names prior to initiation of this lawsuit, even if the comments are false, nothing could be revealed in discovery that could establish that Ms. Pincus knew the statements were false. 223 See Pincus Aff. Exh. 19 (You have been anonymously posting for months that we (including Beth) have been in league with the Russos); Pincus Aff. Exh. 30 (And you know who gets the blame for all these poor decisions? I do, and Kim does. We are being slandered on the internet because people stupidly think we are the ones advising Beth to make these calls.); Pincus Aff. Exh. 44 (Go look at the slander-laden shitstorm that Kim and I have been the victims of on NJ.com, HobokenNow, RealHoboken, HobokenRevolt and HobokenJournal.); Pincus Aff. Exh.

56
7107708.3

Plaintiffs also allege that they are defamed by allegedly false statements asserting that they post as prosbus and Curious Gal. See Compl. 41, 47, 52, 56, 59, 62, 65, 77, 84, 87, 103, 118, 121. Besides being substantially true (see IV.A.2, above) there is nothing defamatory about identifying the Plaintiffs as the authors of the Curious Gal and prosbus posts. As a rule, those posts are articulate, reasoned, and factually detailed.224 The authors are consistently supportive of Beth Mason and critical of Mayor Zimmer, Kids First, and Ms. Pincus precisely the support and criticism Plaintiffs have publicly voiced. Tellingly, Plaintiffs have not alleged why being identified as prosbus and Curious Gal defames them because they cannot. B. Opinions and Similar Statements Are Unverifiable and Non-Defamatory 1. Opinion Is Non-Actionable Privileged Speech

Opinions are privileged and non-actionable. If opinions are based on alleged facts and the facts are disclosed even the most derogatory or unreasonable opinion is not actionable because readers can interpret the factual statements and decide for themselves whether the writers opinion was justified. Casamasino v. City of Jersey City, 304 N.J. Super. 226, 243 (1997), revd on other grounds, 158 N.J. 333 (1999), quoting Kotlikoff, 89 N.J. at 72-73 (1982)). In other words, harm caused by the publication of an opinion is only actionable if a reasonable factfinder would conclude that the statements imply reasonably specific assertions of fact. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 427 (1999) (letters written to plaintiffs employer stating that plaintiff could not be trusted, had violated ethical guidelines, and would likely make false statements in the future was non-actionable opinion). Where a statement could be

construed as either fact or opinion, a defendant is not held liable because a[n] interpretation

47 (Kim and I have taken heaploads of abuse from the Zimmerists who have smeared us as THE people who made the decisions that ultimately doomed your campaign much of it BY NAME being done publicly in the blogs). 224 See Plumb Cert. Exhs. LL and MM for samples of prosbus and Curious Gal comments.

57
7107708.3

favoring a finding of fact would tend to impose a chilling effect on speech. Lynch, 161 N.J. at 168, quoting Dairy Stores, 104 N.J. at 148. While opinion is never actionable defamation, several categories of opinion have been specifically identified as non-actionable. Political opinions, for example, occupy the highest rung of protected speech and are never a proper basis for a defamation suit. Snyder v. Phelps, 131 S.Ct. 1207, 1215-16 (2011) (Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community.) Political discourse depends on the expression of opinion and, therefore, New Jersey Courts will not suppress speech relating to politics, even though such speech may be emotional, partisan, or self-interested. Lynch, 161 N.J. at 168. As detailed in the statement by statement analysis (Section IV.D, below), all of the complained of statements address Hoboken politics, within either articles on a partisan, amateur political blog, or within heated political debates in the comments sections of another blog. As expressions of opinion within political discourse the complained of statements are non-actionable. Opinions concerning the beliefs of others are subjective assertions not sufficiently susceptible to being proved true or false to constitute defamation. Edelman v. Croonquist, No. 09-1938, 2010 WL 1816180 (D.N.J. 2010) (blog entries accusing plaintiffs of being racists were non-actionable opinion). In Edelman, the Court questioned whether charges of racism could ever constitute actionable defamation, citing favorably Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (Accusations of racism no longer are obviously and naturally harmful. The word has been watered down by overuse, becoming common coin in political discourse.) (emphasis added). In a footnote, the Edelman decision explained that the Stevens decision was reached in accordance with New Jersey law. The Edelman decision also explained that charges

58
7107708.3

of racism fit comfortably within the immunity for name-calling. Edelman, 2010 WL 1816180 at *6. Likewise, in DeAngelis v. Hill, 180 N.J. 1, 14 (2004), statements referring to the plaintiff as a bigot were held non-actionable despite the clear charge of racism. In this case, Plaintiffs allege that charges of racist motives (Complaint 121) and antisemitism (Complaint 47, 52) defame them. But these charges fit comfortably within the immunity for name calling and, plainly are subjective assertions concerning the beliefs of others that are not sufficiently susceptible to being proved true or false to constitute defamation. Edelman, 2010 WL 1816180. Opinions concerning the commission of crimes are no less protected because of conclusions asserting criminality, whether or not such opinions are correct. See Van Englen, 1997 WL 406267 at *4 (opinion that the major crime appeared to be within the police department, and identifying the supposed criminals, is non-actionable statement of opinion); see also Lynch, 161 N.J. at 170 (political flyer identifying opponent as a lead figure in the mafia was non-actionable despite implication of criminality). Likewise, implication or innuendo of

criminal acts, based on stated facts, are not defamatory but simply commentary protected by the First Amendment. See Ward, 136 N.J. 516, 535 (discussing Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761 (D.N.J. 2006)). In this case, Plaintiffs repeatedly state that they are defamed by statements implying criminal activity. See Compl. 31, 38, 56, 65, 74, 87, 103, 121. But the statement identified by the Plaintiffs in each paragraph either does not imply criminal activity or states an opinion that addresses criminal activity. Plaintiffs cannot maintain their defamation claims by reading

charges of criminality where none exist or by complaining of mere opinions that address crimes.

59
7107708.3

2.

Rhetoric and Hyperbole Are Non-Actionable Speech See Lynch, 161 N.J. at 167-68

Rhetoric and hyperbole are also protected speech.

(Loose, figurative or hyperbolic language is not likely to imply specific facts, and thus is not likely to be deemed actionable.). In Casamasino, public statements concerning tax assessments that created a wide open door inviting corruption and opens the door for someone to take payoffs were found non-actionable because they were merely rhetoric and hyperbole. 304 N.J. Super. at 243-44 (citing Kotlikoff, 89 N.J. at 72 (1982)). In Lynch, political flyers naming an opponent the Boss of Bosses (a reference to the head of the leading mafia family in New York City and implying involvement in criminal activity) was non-actionable because the reader would understand the statement to be hyperbole and name-calling emanating from a rough-andtumble political campaign. 161 N.J. at 170-71. Accordingly, when Ms. Pincus stated that the Plaintiffs child would be better off raised by wolves and stated somebody call DYFUS (New Jerseys child protective services) because Plaintiffs do not support Ms. Pincus preferred Board of Education candidates, any reasonable reader would understand these statements to be hyperbole. See Complaint 59, 62, 65, 71, 74. Rhetorical questions calculated to provoke discussion are likewise not capable of defamatory meaning. Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 764-65 (D.N.J. 1981) (photograph of white plaintiff prodding a black man with his nightstick, accompanied by the rhetorical question Would the officer be likely to do the same if the offender were a welldressed middle-aged white person? held not capable of defamatory meaning). In Cibenko, the District Court went on to hold that any innuendo drawn from the rhetorical question (i.e., that the plaintiff is racist and specifically prejudiced against blacks), is simply the authors commentary on undisputed facts and [a]s such, it is editorial opinion, safeguarded by the First

60
7107708.3

Amendment. Id. at 765, citing Gertz, 418 U.S. at 339 (1974). Thus, the complained of rhetorical questions in this case, are also non-actionable. See Complaint 103. 3. Insults Are Not Actionable Defamation

Epithets, insults, name-calling, [and] profanity are not actionable defamation. DeAngelis, 180 N.J. at 14. In assessing the potential for defamatory meaning, courts must differentiate between defamatory statements and obscenities, vulgarities, insults, epithets, name-calling and other verbal abuse. Id. (internal quotes omitted); see also Hagaman v. Angel, No. ATL-L-2408-03, 2005 WL 1390360, *3-6 (N.J. Super. 2005) (statement referring to plaintiff as the Auto Insurance Fraud Queen was non-actionable name calling despite the implication of a crime; statements in a blog referring to plaintiff as a trailer trash park bigot are nonactionable name calling.) Only verifiable statements, which can be proved true or false, may constitute actionable defamation. Lynch, 161 N.J. at 167. Absent a settled meaning, the truth or falsity of an insult is not susceptible to such proof. Id. (calling a man a wife-beating skunk not actionable as unverifiable insult)); Ward, 136 N.J. at, 537 (calling a woman a bitch not actionable as unverifiable insult); Edelman, 2010 WL 1816180 (charges of racism fall within the immunity for name calling). Accordingly, stating Plaintiffs are persons of interest or political operatives cannot be actionable defamation because those terms do not have settled meanings. Comp. 31, 41, 47, 52, 56, 77, 87, 118. Plaintiffs allege that they have been defamed because Ms. Pincus stated that they suck as parents. Compl. 59, 62; see also Compl. 65, 71. Whether Plaintiffs suck as parents is unverifiable. The phrase is also meaningless invective or name calling and therefore non-

61
7107708.3

actionable. Likewise, charges of racism and anti-Semitism fit comfortably within the immunity for name-calling. Compl. 47, 52, 121. C. The Context of the Complained of Statements Makes Them Non-Defamatory Statements must be viewed in their context to determine whether they are actionable defamation. See DeAngelis, 180 N.J. at 15 ([C]ourts must consider the listeners reasonable interpretation, which will be based in part on the context in which the statement appears to determine whether the statement was capable of a defamatory meaning.) (quoting Ward, 136 N.J. at 532). The context to be considered is both narrowly linguistic and broadly social. Wilson, 297 N.J. Super at 137. The medium by which the statement is disseminated, political speech, overblown criminal charges, jokes and long-time wars of words, each discussed below, all put reasonable readers on notice that statements are opinion rather than fact. First, the medium by which the statement is disseminated and the audience to which it is published affects whether a statement is actionable because certain media put reasonable recipients on notice that statements will be provocative and caustic and the reasonable recipients accordingly discount such statements. Id. at 138 (listeners to a.m. radio talk shows discount statements made in that medium). The publications of comments on blogs, especially when the content of the blogs is sometimes rude and offensive, provides context to readers sufficient to provide notice that the language that has been provided amounts to nothing more than defendants negative opinion of the plaintiff and a reasonable person would find that the language of the statements themselves is only the opinion of the speaker. Hagaman, 2005 WL 1390360 at *3. In this case, all of the complained of comments are either published on an amateur, partisan political blog that is often rude and offensive, or are comments within heated exchanges in the comments sections of a blog addressing Hoboken politics. The audience for

62
7107708.3

these publications knows that amateur partisan political blogs represent the opinion of the speaker, as do nominally anonymous comments posted below political blog articles. Second, statements made in the heat of a contentious political campaign are not likely to be actionable defamation because political discourse, even in its meanest form, is at the very core of free speech protections. G.D. v. Kenny, 205 N.J. at 291-92; see also McLaughlin, 331 N.J. Super. at 312-13 ([A]ccusations during a heated political campaign are likely to carry less credibility for the average person than they would in a less emotional context.). In New Jersey, [p]olitics is not a parlor game and individuals supporting campaigns may be caught in the cross-fire without redress. G.D. v. Kenny, 205 N.J. at 309 (factually inaccurate campaign flyers attacking campaign aid held non-defamatory based, in part, on the political context of the statements).225 Any accusations made in the complained of statements are within the context of Hobokens political schism. Third, where criminal allegations are concerned a court needs to examine a statement in context to determine whether it conveys the impression that a plaintiff is being accused of a crime. Karnell v. Campbell, 206 N.J. Super. 81, 89, 93 (App. Div. 1985) (letter accusing developer of theft and rape was not actionable defamation because any reader would understand that she [defendant] was not accusing plaintiffs of the crimes of rape or theft). Accordingly, Plaintiffs assertions that Ms. Pincus figurative language addressing their politics actually accuses Plaintiffs of prostitution and should be read literally to imply the crime of prostitution are misplaced. See Complaint 65, 74. Fourth, there is no defamation where complained of statements, taken in context, are clearly understood as being parody, satire, humor or fantasy. Salek v. Passaic Collegiate

The plaintiff in G.D. v. Kenny had not worked on a political campaign for six years prior to the publication of the complained of statements. G.D. v. Kenny, 205 N.J. at 284-85.

225

63
7107708.3

School, 255 N.J. Super. 355, 359 (App. Div. 1992) (publication suggesting an ongoing sexual relationship non-actionable satire); see also Hustler Mag. v. Falwell, 485 U.S. 46 (1988). Thus, the satire complained of in Complaint Para. 28 is a not actionable. Finally, a long time war of words between parties to an action causes reasonable readers to naturally discount[] to some degree statements made in the heat of vitriolic battle, because the recipient understands the human tendency to exaggerate positions during the passions and prejudices of the moment. Wilson, 297 N.J. Super. at 137-38. All of the

complained of statements in this case involve a public, long time war of words between Ms. Pincus and the Plaintiffs. Plaintiffs initiated the war of words when Lane Bajardi repeatedly spoke at City Council and Board of Education meetings attempting to score political points against Mayor Zimmer by linking Ms. Pincus and her sometimes crude blog illustrations to the Mayor. Those efforts have continued, either by Plaintiffs or their political allies, through internet comments and anonymous flyers and anonymous video vans publicizing statements critical of Ms. Pincus throughout Hoboken. Anyone paying attention to Hoboken politics, i.e., the

audience of the complained of statements, is aware of the long time war of words between the parties. All of the complained of statements are within blog articles or blog comments, address political issues in a contentious political setting, and are elements of a long time war of words between the Plaintiffs and Ms. Pincus. Any one of these three contexts would suffice to put a reasonable reader on notice that the complained of statements are merely heated opinion. In this case, with all three factors present, no reasonable reader could possibly understand the complained of comments to be anything but opinion.

64
7107708.3

D.

Analysis of Each Complained of Statement is Necessary to Dispose of or Pare Down Defamation Complaints at the Earliest Possible Stage of Litigation Summary judgment should be used to bring defamation suits to a speedy end.

Maressa, 89 N.J. at 196. Even where one or more in a series of complained of statements may be actionable, an early paring of a defamation claim is appropriate to isolate precisely what is at issue, help determine the scope of the discovery and clarify for defendant what it must prove to assert the defense of truth. Id. at 197. In order to isolate precisely what is at issue, each complained of statement must be analyzed in context. In this case, the context of the complained of statements provides readers with notice that each of the complained of statements are opinion involving political issues and stated within a long running, public war of words and are therefore not actionable defamation. While context alone is sufficient to dismiss this case, the following, statement-by-statement analysis addresses additional reasons why the Plaintiffs cannot maintain a claim for defamation. 1. Complaint Paragraph 28

The complained of Article is an August 15, 2011 blog entry entitled Dear FBI: Letter No. 4.226 The Article is not actionable defamation because it is a joke and not of and

concerning the Plaintiffs. Furthermore, Ms. Pincus published a full retraction. Plaintiffs allege that the Article threatens violence against Plaintiffs and their child and falsely implies Plaintiffs involvement in criminal activity.227 In fact, the statement is nondefamatory because the Article is a joke that is not of and concerning the Plaintiffs or their child. The Article simply does not mention Plaintiffs or their child. The Plaintiffs assertion that violence was threatened against their child is baseless but was widely reported in Hoboken

Pincus Aff. Exh. 60. Plaintiffs do not allege that this statement is false but not defamatory. Accordingly, the claim should be dismissed for failure to state a defamation claim.
227

226

65
7107708.3

after Plaintiffs filed this lawsuit, and is further evidence of the improper purpose of this litigation.228 The Article was published as a hand-written, three page image of a satirical, fantasybased letter to the FBI. This is the fourth in a series of nine such satirical letters and clearly marked as such (Dear FBI: Letter No. 4). The context of the letter informs reasonable readers that the letter is a joke.229 For example, the first paragraph states: Dear FBI, Howve you been? Sorry you havent heard from me in a while. No, Im not mad at you, I was on vacation. Have you had one this summer? Remember to bring your sun block 35 or higher. Do you burn or tan? The last paragraph invites FBI out for a falafel at Mamouns and asks if the FBI likes hot sauce. Likewise, in the third paragraph, the letter asks the FBI: did that bird ever crap on your shoulder? Reasonable readers would recognize these statements as satire or jokes and

understand the remainder of the publication to also be a joke. There is no defamation where complained of statements are satire, humor or fantasy. Salek, 255 N.J. Super. at 359. The fourth paragraph makes a joke out of the notion that Ms. Pincus, a slight blogger with a degree in architecture who has never held a gun, might be hired by the FBI and issued a gun, in stating: I think Id do a GREAT job. First of all, Ive always wanted to shoot someone. Id get a gun, right? Well, Id definitely use it. Alot. Maybe everyday. Bang bang! Take that! Only do I ask questions first THEN shoot? Or shoot FIRST and ask questions later? I guess its in the manual, right? No serious text addressing the FBI would ask these questions or use the phrase Bang bang! Take that! Obviously, this letter is a joke. Jokes in poor taste are no less protected by the First Amendment. See Hustler Mag., 485 U.S. at 48-50 (article purporting to quote public figure

Pincus Aff. 11, 34, 38, 46. Plumb Cert. Exh. II. The larger context of the letter posted to a partisan, satirical blog also alerts readers to discount the veracity of any claims made therein. See Point IV.B, above.
229

228

66
7107708.3

relaying details of drunken, incestuous sexual escapade in an outhouse with his mother deemed non-actionable joke). Expanding on the joke that she might someday work for the FBI, the letter states that she has a whole list of people to arrest all within walking distance! Ones on upper Hudson, anothers on Park, one lives above a Pet Shop Ill tell you, Ill just walk over at 6 am and knock on their doors. And if they dont answer right away, Ill take out my gun and shoot the door knob (I get a gun, right?) And if they resist Ill apply the Vulcan Death Grip one squeeze and theyre down.230 Again, reasonable readers would identify this paragraph as a joke. The Vulcan Death Grip is a fictitious hand-to-hand combat technique used by Mr. Spock, a halfhuman, half-alien (Vulcan) officer on the Starship Enterprise in a 1968 episode of the science fiction series Star Trek, i.e., the statement is non-defamatory fantasy.231 In case any reasonable reader who frequented Ms. Pincus blog could not discern from context that the letter was a joke, one week later Ms. Pincus published a full retraction (Dear FBI: Letter No. 5), in the same publication format as the August 15 publication, in response to a criminal complaint reportedly filed by Lane Bajardi232 and others. The retraction states, in part: I regret any misunderstanding if anyone took any part of this seriously, or as anything but utter nonsense 1. I DO NOT want to work for [the FBI] That was a JOKE 2. I have NEVER NOT EVER wanted to shoot ANYONE. That was a JOKE. The idea of the joke was self-ridicule in this fake job-interview scenario. So the statement was meant to be an eye-rolling stupid thing to say. There is NO TRUTH in that statement. 3. I dont have a list of people to arrest. That was a JOKE. I dont even shop with a shopping list. 4. The shooting the
The plain meaning of this sentence is that Ms. Pincus, if she were an FBI agent, would arrest -- not shoot, not harm, just arrest -- people, and if they resist her judicially sanctioned, legal FBI arrest, she would nevertheless execute the arrest warrant by way of a fictitious grappling technique. No reasonable person reads that sentence and concludes that the Plaintiffs child has been threatened. 231 Even in the fantasy world of Star Trek, there is no such thing as a Vulcan Death Grip. See Star Trek, Season 3, Ep. 2 at http://www.startrek.com/watch_episode/gYcqGmppa8GO (Nurse Chapel: But theres no such thing as a Vulcan death grip! Captain James T. Kirk: Ah, but the Romulans dont know that.) 232 Plaintiffs failure to demand retractions of the other Statements precludes punitive damages and substantially decreases other damages based on Plaintiffs failure to mitigate. The retraction demonstrates Ms. Pincus willingness to retract or otherwise correct statements given adequate notice.
230

67
7107708.3

doorknob off was a JOKE. 5. I do not want to share a falafel with [the FBI] at Mamouns. If we go to Mamouns I am getting my own. Ive been doing satire for a year and a half. I am not always funny.233 Soon after publication of the subject article, Augustin C. Torres, the Political Insider for The Jersey Journal, reported that Mason, Occhipinti, and Lane Bajardi had filed a criminal complaint against Ms. Pincus based on the content of the letter.234 Besides being a joke, the statement is not of and concerning Plaintiffs,235 and the reference to Park does not make it so.236 See Ditzel, 962 F.Supp. at 605 (stating that a financial report Plaintiff had prepared contained errors was not defamatory because [u]nless someone knew that plaintiff was a member of the department and that he had been discharged, the reader would have no way of knowing that [the statement] pertained to the plaintiff). As in Ditzel the Plaintiffs ask the court to assume a reader knew several things about the Plaintiffs, including their address and that the author suspects that they (and only they, among the residents of Park) might eventually be arrested in connection with the FBI investigation. And, as also in Ditzel, the absence of sufficient identifying language, despite the potential inclusion of some identifying language, compels rejection of the defamation claim. 2. Complaint Paragraph 31

Paragraph 31 complains about a handful of statements within a five-page article discussing the changes that have occurred in Hoboken since the beginning of the FBI investigation concerning the Mayors stolen e-mails, published on September 13, 2011,237 entitled The Calm Before. The statements are not actionable defamation because they are
See Pincus Aff. Exh. 60. See Plumb Cert. Exh. CC. 235 In response to the criminal complaint reportedly filed by Plaintiff Lane Bajardi, the Hoboken Police Department spent approximately one hour asking Ms. Pincus who was referenced in the article. Clearly, the Hoboken Police could not discern, from the text, who the article was of and concerning. See Pincus Aff. 60. 236 Query why Plaintiffs, who claim not to be political operatives and to have nothing to do with the stolen e-mails from the Mayors office currently being investigated by the FBI, would even assume that the article refers to them. 237 Plaintiffs misstate the date of publication as August 15, 2011. Complaint 31.
234 233

68
7107708.3

opinion, do not have a definite meaning, are true, are substantially true, or are not susceptible to a defamatory meaning. The article features a satirical image of FBI agents raiding a City Council meeting. The entire post addresses issues of public concern, including e-mail theft from City Hall, an FBI investigation into the theft, and changes that have occurred in Hoboken politics since the FBI raid. The article discusses the sudden halt in Mason friendly advertisements and articles on Hoboken 411, the shuttering of the Russo Civic Association building, Lane Bajardis decision to stop attending City Council meetings, the sudden absence of Mason friendly comments on various blogs, a less combative public demeanor from City Councilman Mike Russo, and the relocation of another political operative from Hoboken to the Shore. statement is: City Council regular for years, Beth Mason operative Lane Bajardi- famous for choreographed City Council performances coordinated with self-authored hit pieces in Hoboken411.com and scripted Mason outrage- has been MIA at public meetings. Severed from Hoboken411.com and neutered at the City Council, Bajardi has been lashing out on Patch and Hudson Reporter forums. To boot, he's ditched his 'known' screen names, commenting under a variety of new ones, with rants as identifiable as a finger print. GA thinks the motive for using so many screen names is to create the perception that the 'message' is shared by many messengers. In fact, it's one person blowing a lot of smoke. Ha! It looks like I spoke too soon... the Mason checkbook seems to have flipped open to throw a certain cyber-slug a bone. Yes, he's published another putrid Bajardi screed. FBI, they're at it again. Persons-of-interest, enjoy the time you have left. Unshackled. Plaintiffs allege that these statements are false and defamatory because (1) Mr. Bajardi is not a person of interest, (2) is not involved in criminal activity, (3) is not a political operative, (4) is not paid by Ms. Mason, (5) does not anonymously post on Hoboken Patch, and (6) did not post any comments referenced by the statements. But Lane Bajardi is a political operative (see Point IV.A.2, above), Ms. Pincus opinion that he is paid by Beth Mason is not defamatory (see Point 69
7107708.3

The complained of

IV.A.3, above), and stating that Lane Bajardi anonymously posts on Hoboken Patch is substantially true (see Point IV.A.2, above). The article is non-actionable opinion based on stated facts concerning the FBIs raid on City Hall in response to the theft of e-mails from the Mayors office and also states that Cammaranos prison sentence was likely reduced because he talked. Ms. Pincus then clearly signals to her readers that she is stating her opinion, which is based on her observations: GA believes the following are a direct consequence of the FBIs ongoing investigation in Hoboken. Note these are simply my own observations.238 A list of six changes in Hoboken follow. Two of those involve Lane Bajardi. The first states that Hoboken411 is no longer used as a Mason propaganda tool and the second states that Lane Bajardi has stopped attending City Council meetings. Both of these truthful observations are well documented. Person-of-interest does not have a specific meaning and, for that reason alone, cannot be defamatory.239 Lynch, 161 N.J. at 167 (referring to plaintiff as a wife beating skunk was nondefamatory because words that do not have a settled meaning are not defamatory). Bajardi was known to work closely with Beth Mason, and the Hudson Reporter had reported that many people believed Mason had been involved in the e-mail theft based on the text of the FBIs criminal complaint against Ricciardi. In addition, the FBI had been visiting Ms. Pincus blog when she wrote articles relating to Mason and Bajardi.240 Ms. Pincus used these facts as the basis of her non-defamatory opinion that Lane Bajardi is a person of interest.

In the larger context of a partisan political blog detailing minutia of insider politics, a reasonable reader would be on notice that everything on the blog is merely Ms. Pincus opinion. 239 See Dilemma of Interest, American Journalism Review, Donna Shaw, February/March 2006 (Plumb Cert. Exh. PP) (Addressing the recent increase in the use of the phrase person of interest, reasons for its use, and the meaning of the term. Person of interest means nothing it is a vague term that has no real understandable definition.) 240 Pincus Aff. 124; Pincus Aff. Exh. 61.

238

70
7107708.3

The Article does not state that Bajardi is involved in criminal activity.

Rather, it

truthfully states that shortly after initiation of the FBI investigation Lane Bajardi stopped attending City Hall meetings and that Hoboken 411 stopped running advertisements and articles promoting Beth Mason and authored by Lane Bajardi. Ms. Pincus opinion regarding her interpretation of these stated facts is non-actionable, even if that conclusion implies involvement in crime. See Van Englen, 1997 WL 406267 at *4 (opinion that the major crime appeared to be within the police department, and identifying the supposed criminals, is non-actionable statement of opinion). In fact, opinions are protected speech no matter how derogatory or unreasonable. Casamasino,, 304 N.J. Super. at 243, revd on other grounds, 158 N.J. 333, quoting Kotlikoff, 89 N.J. at 72-73). As to whether or not Lane Bajardi authored the referenced statements, none of the those statements are identified and, therefore, authorship is unverifiable. To the extent Plaintiffs deny that they have written any anonymous comments on Hoboken Patch or Hoboken 411, allegations that they have written comments supporting Beth Mason and the Russo Faction, and critical of Mayor Zimmer, Theresa Minutillo, and Nancy Pincus are substantially true, whether the comments were in fact authored by Plaintiffs or other Masonistas. See IV.A.2, above. Furthermore, Ms. Pincus provides the factual basis for her opinion that the latest rants are Lane Bajardis because his style is as identifiable as a fingerprint. The fingerprint style of Plaintiffs posts are detailed in the Section J of the Background and Facts. Ms. Pincus opinion concerning the authorship of comments, based on stated facts, is non-actianable.

71
7107708.3

3.

Complaint Paragraph 38

Plaintiffs state that they have been defamed by the November 9, 2011 Grafix Avenger blog article entitled Excerpts From the Complaint. actionable defamation because it is opinion. The subject of the November 9 Article is the criminal complaint filed by the Department of Justice against Patrick Ricciardi, the Hoboken City Hall IT staffer who was accused of stealing e-mails from the Mayor and certain Mayors Office Employees and forwarding those e-mails to others, including a City municipal official and a former City municipal official, as well as undisclosed other individuals.241 The Article addresses a topic of public interest. The criminal complaint pointedly notes that some City Council members retain strong ties to previous administrations and that evidence of a political schism is evident in the local blogs. Specifically, the complaint states: 7. The investigation has also revealed that many of the elected and appointed officials in the City retain strong ties to the previous administration or are otherwise politically opposed to the Mayor, and have sparred with the current Mayor on a variety of municipal issues, large and small. These officials include several members of the City Council, as well as high-ranking employees of different City municipal agencies such as Public Safety Department, the Fire Department, and the OEM. 8. Evidence of this schism in the City is apparent through the postings of articles and comments on City-related issues to different weblogs, or blogs. These and other relevant portions of the Complaint were posted within the November 9 Article which states Ms. Pincus opinion that Ricciardi made false statements to the FBI in order to cover-up a conspiracy. A reasonable reader, encountering a self-identified conspiracy theory on a partisan, political, amateur blog would understand the statements to be opinion based on the context alone. The complained of statement is not

241

See Plumb Cert. Exh. XX (U.S. v. Ricciardi Criminal Complaint).

72
7107708.3

The complained of statement242 is: Another point of note is the role of the blogs in the complaint, citing them as evidence of the political schism in Hoboken. GA believes this points to Hoboken411.com, Perry Klaussen and Lane Bajardi for their handling of leaked emails and other leaked materials as part of the conspiracy. It also points to the other political blogs whose emails were requested on the Mason-Russo resolution: Hoboken Journal, Mile Square View and Grafix Avenger. Plaintiffs allege that these statements are false and defamatory because (1) Lane Bajardi was not involved in the theft of e-mails, (2) Lane Bajardi is not involved in the handling of emails or other materials leaked in relation to that crime, (3) Lane Bajardi is not a party to a conspiracy, and (4) the statements imply involvement in criminal activity. Ms. Pincus conspiracy theory, based on the text in the criminal complaint which was published within the November 9 Article, was that the City Council members with strong ties to the previous administration, i.e., the Russo Faction, were involved in e-mail theft.243 In the Article, Ms. Pincus further hypothesizes that the Russo-Mason resolutions attempting to acquire e-mails sent to various bloggers was intended to make stolen e-mails publicly available, as a cover for anyone in possession of the stolen e-mails. Lane Bajardi had also appeared at City Council meetings supporting Ms. Masons e-mail investigation.244 Ms. Pincus opinion is based

Plaintiffs effort to expand the complained of statements with the phrase including, but not limited to the following does not state a claim for whichever other statements Plaintiffs purport to be defamatory. See Miele v. Rosenblum, 254 N.J. Super. 8, 12-14 (App. Div. 1991) (plaintiffs must specify the defamatory words and the meaning they attach to them). 243 Ms. Pincus was certainly not the only Hoboken resident to form this opinion. See S. Hortillosa, Hoboken City Council Minority members deny involvement in suspended IT officers alleged hacking of city officials emails, The Jersey Journal (published on NJ.com) (Nov. 11, 2011) (While some believed that council members Beth Mason, Tim Occhipinti, Michael Russo, and Theresa Castellano all Zimmer opponents were involved in the incident, they have all denied wrongdoing.) (available at http://www.nj.com/hobokennow/index.ssf/2011/11/hoboken_city_ council_minority.html). 244 See Plumb Cert. Exh. A(11) (Lane Bajardi stating that the e-mail investigation had been undermined by the Mayors phantom IT team.)

242

73
7107708.3

on stated facts and clearly identified as opinion.245 Reasonable readers would understand the entire Article to be opinion. Furthermore, the complained of statement does not state or imply that Lane Bajardi was involved in the theft of e-mails or other criminal activity. The statement plainly states that Ms. Pincus believes that the FBIs complaint points to Lane Bajardi, among others, for handling leaked e-mails. The only potential criminal activity was the theft of the e-mails (the leak) which the FBI attributed to Ricciardi. Once the e-mails are leaked, distributing them to the press or publishing them is not a crime. See Bartnicki v. Vopper, 532 U.S. 514 (2001) (disclosure of information by an innocent recipient does not impute criminal guilt, despite knowledge that the initial disclosure was unlawful); see also New York Times Co. v. United States, 403 U.S. 713 (1971). Plaintiffs tortured reading of the statement is not the fair and natural meaning of the words and the Court should not strain the natural meaning to adopt Plaintiffs imputation of criminal activity. Lynch, 161 N.J. at 168. Second, Ms. Pincus stated facts from a criminal complaint, relevant portions of which were published within the Article, and concludes from those facts, in a manner that makes clear to the reasonable reader she is stating an opinion (i.e., GA believes this points to), that the website that most prominently opposes Mayor Zimmer is involved in the subject conspiracy theory. (Recall that Perry Klaussen runs Hoboken411, and Lane Bajardi is Beth Masons

245

A supporting but unstated basis for the theory was the correlation of dates between the Mason-Russo resolutions, one of which was published with the Article, which requested City Hall staffer e-mails from January 1, 2010 and the criminal complaints statement that the e-mails had been stolen since early 2010. See C. Moses, Council President Wants Mayors Staffers E-Mails, HobokenPatch.com (April 1, 2011) (Mason and Russo want to see all e-mails since Jan. 1, 2010, from the city-issued e-mail addresses of [two City Hall employees].); C. Moses, Mason Wants Mayors Staffers E-Mails to Press, HobokenPatch.com (May 16, 2011) (Now, the resolution asks for specific emails to and from local bloggers, reporters, as well as former Michael Lenz campaign worker Sam Briggs and Blueline Campaigns.). The articles are available at http://hoboken.patch.com/articles/council-president-wantsmayors-staffers-e-mails and http://hoboken.patch.com/articles/mason-wants-mayors-staffers-e-mails-to-local-press.

74
7107708.3

conduit to Hoboken411.246) Opinions that disclose all of the facts on which they are based, even the most derogatory or unreasonable opinion is not actionable because readers can interpret the factual statements and decide for themselves whether the writers opinion was justified. Casamasino, 304 N.J. Super. at 243 (quoting Kotlikoff, 89 N.J. at 72-73 (1982)), revd on other grounds, 158 N.J. 333. Accordingly, the complained of statements of opinion in the November 9 Article are non-actionable opinion. Plaintiffs incorrectly assert that opinions constitute actionable defamation simply because they address criminal activity. In fact, even if criminal acts had been implied, they still would be opinions and privileged. See Van Englen, 1997 WL 406267 at *4 (opinion that the major crime appeared to be within the police department, and identifying the supposed criminals, is non-actionable statement of opinion). 4. Complaint Paragraph 41

On December 23, 2011, Ms. Pincus published an Article on her blog entitled Smartboards and the I.R.S. The complained of statement is not defamatory because it is true, substantially true, not susceptible to a defamatory meaning, a rhetorical question meant to spur discussion, or opinion. The article addresses comments made to other articles below other blogs concerning the Hoboken public schools. The complained of statements include the following Then theres CuriousGal (Bajardis Bridezilla) whosNOT curious enough to know why her hubbys never appeared on a Mason ELEC or if that revenue stream has been reported to the I.R.S GAs heard the I.R.S. has given cash rewards to those who report tax cheats. Maybe CuriousGal can get us the answer: How to Report Suspected Tax Fraud Activity: http://www.irs.gov/individuals/articls0.id=106788.00.html) I hear the I.R.S. is curious about unreported income.

246

See Pincus Aff. Exh. 65 (Stuiver Aff. 4).

75
7107708.3

A real curious gal might explore whats really going on in our schools instead of trashing elected Board members and their children. For compensation? For fun? A real curious gal might want to know what happens to whose compensation for political campaign work goes unreported to the NJ Election Law Enforcement Commission and the I.R.S. GA is certainly curious about that. I must be a Curious Gal. Plaintiffs allege that these statements are defamatory because Kim Cardinal (1) does not post as Curious Gal, (2) is not a political operative, (3) is not paid by Ms. Mason, (4) does not have unreported income from Ms. Mason, (5) encourages readers to contact the IRS to initiate an unwarranted investigation of Plaintiffs. Kim Cardinal is a political operative (see IV.A.2, above) and assertions that she posts as Curious Gal are substantially true (id). Whether Kim Cardinal is paid by Beth Mason is not susceptible to a defamatory meaning. See IV.A.3, above. The statement does not state that Kim Cardinal has unreported IRS income but instead questions if that revenue stream has been reported to the I.R.S. This is clearly a question meant to spur discussion on an issue of public concern and therefore not actionable. See Cibenko, 510 F. Supp at 765. Even the title of the link to an I.R.S. circular is stated in the form of a personal opinion: How to Report Suspected Tax Fraud. Ms. Pincus suspicion that Ms. Masons operatives may have committed tax fraud is non-actionable opinion. Furthermore, contrary to Plaintiffs assertions that the statement encourages readers to contact the IRS, the only person being encouraged to contact the IRS is Kim Cardinal, to whom the post is addressed (Maybe CuriousGal can get us the answer.). Finally, the IRS independently determines whether or not to initiate tax fraud investigations, anyone may submit a Form 3949A reporting anyone else, and such submittals do 76
7107708.3

not harm anyone. In contrast, falsified information submitted on a Form 3949A exposes the submitter to potential criminal violations. See 18 U.S.C. 1001 et seq. 5. Complaint Paragraph 47

On January 18, Ms. Pincus sent an e-mail to 1010WINS. The e-mail is not actionable defamation because it is true, substantially true, non-actionable name calling, or unverifiable opinion. In addition, the e-mail was sent to a single recipient who understood its content to be opinion. The e-mail states: Lane Bajardi is a hyper-partisan political operative who blogs under the screen name prosbus, and is now fomenting anti-Semitism in his latest effort to smear Hobokens Jewish mayor, Dawn Zimmer. As a Jew, I am offended and disgusted by this. As a well-known political blogger in Hoboken, I will be asking my community to reject Mr. Bajardi and his hate-mongering. I dont think your advertisers will appreciate a voice on your airwaves actively engaged in spreading bigotry and intolerance in the Hoboken community. Here are (2) of Mr. Bajardis posts attached, in case he has them deleted first: prosbus 10:42 am on Monday, January 16, 2012 Santa was removed from Calabro; Zimmer got angry with Father Vinny after the police mass at St. Anns Roman Catholic Church last year; Saint Patricks Day Parade cancelled some are seeing a pattern developing. prosbus 1:04 pm on Monday January 16, 2012 The definition of anti-semitism is suspicion of, hatred toward, or discrimination against Jews for reasons connected to their Jewish heritage. Nothing could be further from the truth. What I do know as facts are these: 1) Santa was removed from the public schools this Christmas 2) Mayor Zimmer raised her voice repeatedly and had to be restrained after the police mass at St. Anns 3) The St. Patricks Parade committee recently cited Mayor Zimmers religious/cultural intolerance in a lettering surrounding the events of the recent St. Patricks Parade cancellation 77
7107708.3

A climate of intolerance is building up in this city and it is centered around religious and cultural issues. The former whispered voices are now becoming a chorus. Plaintiffs allege that the statement is defamatory because Lane Bajardi (1) is not antisemitic,247 (2) has not posted anything anti-Semitic, or anything attacking other ethnic or religious groups, (3) is not a political operative, (4) and does not post as prosbus. But Lane Bajardi is a political operative and that true statement is not actionable defamation. See IV.A.2, above. Assertions that Bajardi posts as prosbus are substantially true and not susceptible to a defamatory meaning. See IV.A.2 and IV.A.3, above. Whether or not Lane Bajardi is anti-Semitic is a matter of unverifiable opinion, name calling and not actionable. DeAngelis v. Hill, 180 N.J. at 14; Edelman, 2010 WL 1816180 at *6. Ms. Pincus clearly stated the basis of her opinion by reproducing the entirety of two blog comments that she believed were authored by Lane Bajardi and she found offensive. In fact, both of the referenced prosbus blog comments relate only facts. In Ms. Pincus opinion, the presentation of the facts amounted to anti-Semitism. Her opinion that Lane Bajardi is anti-Semitic is supported by Lane Bajardis City Council appearance wherein he verbally attacked Jewish Mayor Zimmer (and Mr. Cunningham) before concluding that they dont have vowels at the end of their names so its not incompetence. That performance demonstrated to Ms. Pincus that Lane Bajardi is willing to make ethnicallycharged public comments while insulting Hobokens Jewish Mayor. The letter from Mike Lenz to Lane Bajardi demanding that he retract comments published on Hoboken 411 implying that Lenz is racist further informed Ms. Pincus belief that Lane Bajardi employs charges of racism and ethnic based attacks within his anti-Zimmer rhetoric. The practice of the Russo Faction

Note that Ms. Pincus, Dawn Zimmer, and Beth Mason are all Jewish. Lane Bajardi has publicly stated that he had a Jewish grandfather who enlisted in the Army during World War II to liberate concentration camps.

247

78
7107708.3

employing ethnically charged arguments is further illustrated by the use of a video van in Hoboken to criticize Ms. Pincus with images of Nazi flags.248 The Nazi Van which supported the Russo Factions November 2012 candidates for the Board of Education has resulted in a powerfully worded condemnation from local rabbis and has further convinced Ms. Pincus that Lane Bajardi and his Russo Faction allies are anti-Semitic.249 Lane Bajardis employer saw the e-mail for what it was, one listeners opinion concerning the unverifiable beliefs of one of 1010WINS public figure anchors. Rather than blindly believe Ms. Pincus, the station manager instead interpreted her statement as merely her opinion that Lane Bajardi posts as prosbus. Ms. Pincus received a response from 1010WINS stating, Ms. Pincus: Do you have any proof that Mr. Bajardi is prosbus? Thanks.250 That was the end of the matter. As a matter of fact, no reasonable person who read the e-mail believed Ms. Pincus statement of opinion, the sole recipient immediately questioned the veracity of the statement, and Ms. Pincus chose not to follow through with her evidence (stated above). The e-mail expressed Ms. Pincus opinion concerning a public figure, was understood to be opinion, and does not constitute actionable defamation. 6. Complaint Paragraph 52

The complained of statements appeared within a blog article dated January 16, 2012 and entitled Hate on MLK Day. The article is not actionable defamation because it is true, substantially true, unverifiable, name calling or opinion.

See Plumb Cert. Exh. A(12). See Hudson Reporter, Hobokens Rabbis Weigh In on Nazi Truck, Oct. 19, 2012, available at http://hudsonreporter.com/view/full_stories_home/20549502/article (I am shocked this could happen in this day and age. In other countries its a crime to use that image. We have freedom of speech, but a million and a half Jewish babies were killedthis is not something that should be used for some political gain.) 250 Plumb Cert. Exh. CCC.
249

248

79
7107708.3

The article discusses the St. Patricks Parade Committees accusations that Dawn Zimmer had cancelled the parade because of ethnic and religious intolerance. (A bald faced political attack by the Russo Faction friendly Parade Committee that ignored the option for a weekday parade and ignored the impacts of the unruly, drunken Saturday parade crowds that resulted in property damage, noise complaints, arrests, police overtime, assaults and rapes.251) The post then stated, But if the St. Patricks Parade Committee fired the opening salvo, its been taken to the bottom of the swamp in the anti-Semitic rantings of political operative Lane Bajardi. Bajardi posts as prosbus on Patch; its one of many screen names he uses. While GA mainly ignores the dreck that pours from him like a broken sewage pipe, his anti-Semitism cant be. Of course, such filth is evidence of Zimmers political strength. Her handling of Hurricane Irene was top-notch, she (and the Hospital Authority) saved our hospital, she reduced property taxes by 10% - the most in Hudson County, she got the F.B.I. into Hoboken and turned over our Citys data banks for the first-ever serious attempt to clean up City Hall and the list goes on. Thats why Bajardi needs to use the Dirty Jew strategy. Hes got nothing else. So hes peddling hate and prejudice. He and his buddies are saying the (Jewish) mayor and her allies are anti-Christian, anti-Irish, anti-Italian, anti- (name your ethnicity) This opinion addressing an emotional issue of public concern is based on stated facts, published within the Article, including the following post, accompanied by the text, So, see for yourself. The Face of Hate. In his own words. prosbus 10:42 am on Monday, January 16, 2012 Santa was removed from Calabro; Zimmer got angry with Father Vinny after the police mass at St. Anns Roman Catholic Church last year; Saint Patricks Day Parade cancelled some are seeing a pattern developing.

251

See Hobokens St. Patricks Day Parade Cancelled, Claire Moses (Jan. 13, 2012), Hoboken Patch, available at http://hoboken.patch.com/articles/st-patrick-s-day-parade-canceled.

80
7107708.3

Plaintiffs allege that the statements are false and defamatory because (1) Lane Bajardi is not anti-Semitic, (2) does not post anything anti-Semitic, (3) is not a political operative, and (4) does not post as prosbus. Each of these allegations are addressed in Point 5 above (addressing Complaint Paragraph 47). defamation. 7. Complaint Paragraph 56 Accordingly, the complained of statements are not actionable

The complained of statements are within a blog article dated January 25, 2012, entitled Who Luvs Ya, Al? The article is not actionable defamation because it is true, substantially true, not of and concerning Plaintiffs, and non-actionable name calling. Most of the article addresses the alleged corruption of Hobokens fired Construction Code Officer. After being fired for insubordination, Arezzo sued the City and filed an (Since then, the administrative action has been

administrative action to get his job back.

dismissed, finding that Arezzo was properly fired, and the State has cancelled his inspection license based on corruption during the Russo administration, specifically, for Arezzo holding an interest in a building he was inspecting.252) So, when GA read that Arezzo was claiming to be the victim of harassment, well. After playing a mournful tune on the worlds smallest violin, I had to laugh at the mournful post of Curious Gal, who does not deny being Kim Cardinal, the political operative wife of political operative Lane Bajardi (who has not denied posting as prosbus. That paragraph is followed by screen shots of two comments, one from Curious Gal and one from prosbus, stating: CuriousGal ; Mr. Arezzo has the unfortunate distinction of being a born and raised Hobokenknight. This automatically makes him a less than commodity
The final administrative action upholding Arezzos suspension and upholding Arezzos removal from office is available at http://www.hobokennj.org/docs/corpcounsel/Civil-Service-Commission-Final-Administrative-ActionArezzo-v-Hoboken.pdf. Hoboken Patch, Sate Officially Revokes Former Construction Officials License, Claire Moses (Aug. 17, 2012).
252

81
7107708.3

for Mayor Zimmer and her administration. That he is suing the city for the shameful way he was treated is neither a surprise nor is it a unique situation. Listons bully tactics of threats, locking offices and creating a hostile work environment will all be documents as this suit progresses. Very glad that someone is standing up to Zimmer, Liston and the whole thug crew currently in charge of City Hall. Maybe Mr. Da Horsey or Nancy Pincus can post Mr. Arezzos punitive complaint against Dawn and Mr. Liston on their respective blogs ;-) prosbus: greenhaven How about the lawsuit concerning the unlawful attempted termination of the Hoboken Construction Code Official?... Ms. Pincus concluded the post by writing: Who luvs ya, Al? Mr. and Mrs. Melanoma, defenders of corruption, haters of the clean, progressive Kids First majority School Board. And thats about it. Plaintiffs allege the statements are false and defamatory because (1) Plaintiffs are not political operatives, (2) Kim Cardinal does not post as Curious Gal, (3) Bajardi does not post as prosbus, (4) describing Plaintiffs as defenders of corruption falsely implies involvement in criminal activity, and (5) referring to Plaintiffs as Mr. and Mrs. Melanoma is highly damaging to Plaintiffs reputations, and calls for violence against Plaintiffs. Plaintiffs are political operatives. See IV.A.2, above. Assertions that Plaintiffs post as Curious Gal and prosbus are substantially true. See id, above. And Plaintiffs have defended corruption (see Section C in the Background and Facts, above). actionable defamation. Despite the Plaintiffs assertions, the article is not even of and concerning them. Rather, the article carefully states facts, identifying commenters by their pseudonyms and then stating that the commenters have never denied that they are Plaintiffs. Specifically, the Article states, Curious Gal, who does not deny being Kim Cardinal, the political operative wife of political True statements are not

82
7107708.3

operative Lane Bajardi (who has not denied posting as prosbus). actionable truth which is not of and concerning the Plaintiffs.

This comment is non-

Even if the statement were of and concerning the Plaintiffs, the statement defenders of corruption does not falsely imply involvement in criminal activity and no reasonable reader would adopt the Plaintiffs strained construction. Arezzo was corrupt and prosbus and Curious Gal were defending him. In the larger context, Plaintiffs and Ms. Pincus are on opposite sides of Hobokens political spectrum and Ms. Pincus believes that Plaintiffs side, the Russo Faction, is corrupt. Her belief is based on several prison sentences and FBI investigations of Hoboken politicians and their appointees, which have exclusively involved the Russo Faction. Based on those arrests and investigations, Ms. Pincus believes that anyone who champions the Russo Faction, including anyone who works for Beth Mason, is defending corruption. Even so, the Article did not imply that Plaintiffs are corrupt, just Arezzo. Furthermore, Plaintiffs have defended corruption. Lane Bajardis defense of Mayor Cammaranos effort to retain control of the ZBA at the same time Mayor Cammarano was selling zoning variances for cash is one example. True statements are not actionable, even if they are defamatory. The assertion that Plaintiffs are a cancer on the Hoboken political scene, and therefore referred to as Mr. and Mrs. Melanoma is an insult.253 Insults are not actionable defamation. See IV.B.3, above. Plaintiffs assertion that the insult calls for violence against Plaintiffs is a strained interpretation of the fair and natural meaning of the statement; strained to the point that it can only be understood to have been included so that Plaintiffs could include that

This particular insult is also fair comment, echoing statements made by former City Councilman Mike Lenz at a City Council meeting on January 10, 2011. See Pincus Aff. 4.

253

83
7107708.3

allegation in their press releases that followed the filing of this claim for the improper purpose of influencing the November 2012 Hoboken Board of Education election.254 8. Complaint Paragraphs 59, 62, 65, 71 and 74

The complained of statements are comments to a Hoboken Patch article published January 26, 2012 and entitled Dissecting the State of the City Address. The statements are not defamatory because they are true, substantially true, unverifiable, non-actionable name calling, opinion, not susceptible to a defamatory meaning, and hyperbole. As with all of the comments, but particularly pronounced in this case, the context of the anonymous blog comment section clearly signals to readers that the statements are opinion. The comments pages for the article include 116 comments that print out on 28 pages, in small font, and extend across four full days of contentious sniping among the handful of commenters. CuriousGal owned the first comment. The next four comments, none of which were authored by Ms. Pincus, identify CuriousGal as Kim and Lane Bajardi and query why Lane has never showed up on a Mason ELEC. The comment complained of in Paragraph 59 states: Curious Kim Cardinal and gettheledout44 Bajardi trashing the public shools has become your full-time occupation, hasnt it? Have the Russos adopted you yet? You are so protective of their buddy Al Arezzo. Its heartwarming how you care about Arezzo, but attack our public schools that your own child may be using in a year or two. What kind of parents are you? Trying to drive families away from public schools by trashing them 24/7. You could care less about your own kid, future public school student? You hatred of the mayor is more important than him. You 2 suck as parents. Somebody call DYFUS. The kid would be better off being raised by wolves. Poor thing. Plaintiffs allege that the statements are defamatory because (1) Kim Cardinal acts to ensure her childs well-being, (2) suggesting that someone call DYFS damages their reputations

254

See Plumb Cert. Exh. II.

84
7107708.3

and (3) Plaintiffs do not post comments under the identified pseudonyms including variations of Curious Gal and gettheledout44. The complained of statement in Paragraph 62 states: USE OUR SCHOOLS, folks. Do not listen to this nit wit. The teachers are wonderful, and the learning environment is extremely supportive of kids at all levels of performance. Whichever end of the testing spectrum your child may be, the teachers provide the time and materials to challenge or support them. These imbeciles are trying to discourage public school attendance, even though they are PARENTS here. They are more loyal to their political hatreds than their community. This Curious Cardinal MOTHER hates the mayor more than she looks out for the welfare of her own child. gettheledout44 Bajardi would rather trash the schools than support them for the sake of his young child. They suck as parents. Neither of these 2 nitwits, blogging for poor AL Arezzo, give a damn about our schools. They should adopt Al Arezzo and change their last names to Russo. Their poor kid. Wont somebody call DYFUS? Hed be better off being raised by wolves. Plaintiffs allege that the statements are defamatory because (1) Kim Cardinal acts to ensure her childs well-being, (2) suggesting that someone call DYFS damages their reputations (3) Plaintiffs do not post comments under the identified pseudonyms including variations of Curious Gal and gettheledout44, and (4) Plaintiffs are not associated with Al Arezzo. The complained of statement in Paragraph 65 responds to the following post: I hear former HHS Principal Dr. Lorraine Cella is suing the Hoboken Board of Ed and Peter Carter for harassment and sexual discrimination charges--- let's see how KIDS FIRST and their own disregard for ethics, morals, and the law play out over the next few months. Maybe Nancy Pincus can post the lawsuit on her trash blog? The complained of statement in Paragraph 65 states: Certainly, Curious Kim Cardinal, I'd be delighted. It'll only cost you $1/word. Have one of your pimps write a check. But please, no bouncy ones. In fact, it has to clear before I post for you, since you are known to shill for criminals. Now, getting back to the subject, what kind of mother trashes her school district 24/7 for political patrons? You are a lousy parent. You have no interest in the 85
7107708.3

school system in your child's community. A true disgrace. He'd be better off being raised by wolves. Plaintiffs allege that the statements are defamatory because (1) Kim Cardinal acts to ensure her childs well-being, (2) Kim Cardinal does not post comments under the identified pseudonyms including variations of Curious Gal, (3) Kim Cardinal is not paid by Hoboken politicians or criminals,255 (4) the statement implies Plaintiffs child should be taken from their custody, (5) the statements associate Kim Cardinal with prostitution and criminality, and (5) the statements falsely imply that Kim Cardinal has worked for criminals. The complained of statement in Paragraph 71 states: Curious Kim you are a hoot. So, youll work on informing people of the objective and verifiable data that shows the ineptitude that is going on with Minutillo, McAllistar and company at the Board of Ed for the past 34 months HAW HAW you are a legend in your own mind. Boy, we are all shakin in our boots! Ooooh scary stuff! Bring it on, Kim Arezzo Cardinal Russo. Youve made anything you and hubby have to irrelevant with your defense of the 39 year civil servant (Arezzo) and denial of past BoE corruption. You and hubby lack normal parental instincts, hating the mayor is more important than supporting the public school system for your own son. Somebody call DYFUS. Hed be better off being raised by wolves. Plaintiffs allege that the statements are defamatory because (1) Plaintiffs work to ensure their childs well-being, (2) the statements imply Plaintiffs child should be taken from their custody, (3) Kim Cardinal does not hate Mayor Zimmer, and (4) Plaintiffs are not associated with Al Arezzo. The complained of statement in Paragraph 74 states: Oh Curious prosbus youve become so polite all of a sudden. I guess youre pinch hitting for hubby while hes on 1010WINS. Sorry I dont play your game, am not repeating myself ad nauseum. Thats your game, honey.

255

Query why Plaintiffs have used such specificity in stating who does not pay them.

86
7107708.3

Lets see you and hubby run for the School Board, or volunteer in the schools, or run events like Minutillo, than you can bitch all you like. In other words, get off your nasty ass and do something for our community. Turning tricks for politicos may satisfy your ego, buy you aint helping your kid. Youre a miserable mother, attacking our schools for political masters. The kid would be better raised by wolves. Plaintiffs allege that the statements are defamatory because (1) Plaintiffs work to ensure their childs well-being, (2) Kim Cardinal does not attack Hoboken public schools, (3) Kim Cardinal is not paid by Hoboken politicians, (4) the statements imply Plaintiffs child should be taken from their custody, and (5) the statements associate Kim Cardinal with prostitution and criminality. Plaintiffs repeatedly assert that they care deeply about their child and act to ensure his well-being and that the complained of statements threaten the removal of Plaintiffs child from their custody and is damaging to their reputations. Plaintiffs strained readings can only be interpreted as disingenuousness. First, whether or not the Plaintiffs care deeply about their child and act to ensure his well-being is unverifiable but, more importantly, Plaintiffs assertions simply are not germane to this lawsuit. Ms. Pincus stated the fact that Plaintiffs attack the public school and then stated her opinion, based on that fact, specifically, that they are terrible parents. That is an opinion and an insult and it is unverifiable. Ms. Pincus then engages in hyperbole, stating Somebody call DYFUS and then heightens the hyperbole by stating her opinion that their child would be better raised by wolves. No reasonable reader would call DYFUS upon learning that Plaintiffs support a different slate of Board of Education candidates than Ms. Pincus and no reasonable reader would conclude that Plaintiffs child should be taken from their custody or would be better off raised by wolves. Name calling and hyperbole are privileged speech and do not constitute actionable defamation. See IV.B.2 and IV.B.3, above.

87
7107708.3

Assertions that Plaintiffs are prosbus and Curious Gal (and other pseudonyms by commenters participating in support of and on behalf of the Russo Faction in the same thread of comments) are substantially true. See IV.A.2, above. Assertions that Kim Cardinal hates Mayor Zimmer are unverifiable and therefore not actionable defamation. See Wilson, 297 N.J. Super. at 136-37. Assertions that Plaintiffs are paid for their work on behalf of the Russo Faction, including Beth Mason, are not susceptible to a defamatory meaning and not actionable as defamation. See IV.A.3, above. Kim Cardinals assertion in the Complaint that she does not attack public schools is false. First, Ms. Pincus stated the fact that Plaintiffs attack the public schools based on her belief that they are prosbus and Curious Gal. Even if those statements were authored by other Masonistas, Plaintiffs have repeatedly attacked the current Board of Education (i.e., the public school), including Vote Hobokens decision, via Plaintiffs, to withhold support from the 2007 Kids First campaign, Beth Masons decision not support Kids First in 2009, Ricky Masons decision to support Real Results in 2009, and Kim Cardinals interview of Theresa Minutillo at Beth Masons house, where Kim Cardinal verbally attacked Board of Education member Ms. Minutillo until she walked out. Plaintiffs seem to assign two meanings to the phrases have your pimps write a check and turning tricks for politicos may satisfy your ego. On the one hand they understand the statements to be metaphors for being paid to support the Russo Faction, including Ms. Mason. On the other hand, Plaintiffs strain the same text to literally mean that Kim Cardinal is a prostitute and criminal. As discussed above, assertions that Plaintiffs are paid for the welldocumented work as political operatives are not susceptible to a defamatory meaning. Plaintiffs

88
7107708.3

literal sex worker interpretation simply does not make sense in context and would not be so interpreted by a reasonable reader. See McLaughlin, 331 N.J. Super. at 312. Plaintiffs also assert that they are defamed by statements associating them with Al Arezzo the Russo Faction-appointed building inspector who was the recently fired for insubordination destruction of government property256 and has since had his license revoked by New Jersey for inspecting a building that he partially owned.257 To the extent that Plaintiffs have promoted the Russo Faction since at least 2009, they are truthfully associated with the Russo Factions corrupt appointees, including Al Arezzo. To the extent that another Masonista posted the prosbus and Curious Gal comments supportive of Al Arezzo, the assertion that Plaintiffs posted the comments is substantially true. Finally, allegations that a plaintiff knows or associates with a criminal are not defamatory as a matter of law. Romaine, 109 N.J. at 289. 9. Complaint Paragraph 77

The complained of statement comes from a two page blog article published January 30, 2012 entitled Code Problem? The statements are not actionable defamation because they are true, substantially true, opinion, and not susceptible to a defamatory meaning. The article starts with the publication of a letter that Ms. Pincus received from a reader querying whether the vent atop Plaintiffs penthouse was properly installed. The letter to Ms. Pincus states: hey GA, this smokestack on L*** Baj*rdis penthouse apartment is a recent addition, maybe a couple of years old. it was built below the height of the adjacent building and next to a window. it looks like its blowing carbon monoxide into that apartment. I think those

Arezzo was suspended for insubordination and then fired for removing the SIM card from his City issued cell phone, and destroying the hard drive on his City issued computer. Final administrative decision available at http://www.hobokennj.org/docs/corpcounsel/Civil-Service-Commission-Final-Administrative-Action-Arezzo-vHoboken.pdf. 257 Hoboken Patch, Sate Officially Revokes Former Construction Officials License, Claire Moses (Aug. 17, 2012).

256

89
7107708.3

vents are supposed to go beyond the adjacent roof line and not under a window. heres a photo. is this legal? The blog then reposts three comments to a Hoboken Patch article, entitled Former Construction Official Sues City.258 The complained of, republished posts state: Pincus: Curious Gal, anti-Zimmer operative, is a big Al Arezzo fan. I bring that up because she is believed to be Kim Cardinal (Has never denied it) the wife of prosbus believed to be Lane Bajardi (has never denied it). Take a look in this Patch comment, she calls Arezzo a knight and shamefully treated and a victim of bully tactics. CuriousGal: Mr. Arezzo has the unfortunate distinction of being a born and raised Hobokenknight. This automatically makes him a less than commodity for Mayor Zimmer and her administration. That he is suing the city for the shameful way he was treated is neither a surprise nor is it a unique situation. Listons bully tactics of threats, locking offices and creating a hostile work environment will all be documents as this suit progresses. Very glad that someone is standing up to Zimmer, Liston and the whole thug crew currently in charge of City Hall. Maybe Mr. Da Horsey or Nancy Pincus can post Mr. Arezzos punitive complaint against Dawn and Mr. Liston on their respective blogs ;-) prosbus: greenhaven How about the lawsuit concerning the unlawful attempted termination of the Hoboken Construction Code Official?... Between the CuriousGal and prosbus screenshots, Ms. Pincus wrote, And hubby prosbus is a big Arezzo fan, too; calls Arezzos termination unlawful. The blog goes on to state, As for that smokestack, reader I think you need to contact the Construction Office: Hours: M-F, 9 am 4pm, tel: (201) 420-2066 Hes got to know this like the back of his hand. Not me. But heres what I found from the NJ State Mechanical Code, Chapter 8 Chimneys and Vents. The blog then provides a page of applicable building code and concludes Does that smokestack look like its 4 feet below the window? Really, one cant tell from a photograph. Maybe prosbus or Curious Gal can measure it for us?
Former Construction Official Sues City: Al Arezzo worked for the city for 39 years before his termination in 2011, Claire Moses, HobokenPatch (Jan. 25, 2012).
258

90
7107708.3

Plaintiffs allege that the complained of statements are defamatory because (1) they do not post as Curius Gal and prosbus, (2) they are not political operatives, (3) they do not support Al Arezzo, (4) the statements imply Plaintiffs improper involvement with the installation of a carbon monoxide vent, and (5) the statement encourages readers to contact state officials, which harms their reputation. Stating that Plaintiffs post as Curious Gal and prosbus is substantially true (see IV.A.2, above) and non-defamatory to Plaintiffs (see IV.A.3, above). Within the complained of

statement Ms. Pincus explicitly states their identities as her personal opinion (believed to be) and states the factual basis for each opinion (has never denied it). Opinion based on stated facts is not actionable defamation. See IV.B.1, above. Plaintiffs again assert that they are defamed by statements associating them with Al Arezzo. To the extent that Plaintiffs have spent years promoting the Russo Faction politicians, they are truthfully associated with the Russo Factions corrupt appointees, including Al Arezzo. To the extent that another Masonista may have posted the prosbus and Curious Gal comments supportive of Al Arezzo, the assertion that Plaintiffs posted the comments is substantially true. Finally, allegations that a plaintiff knows or associates with a criminal are not defamatory as a matter of law. Romaine, 109 N.J. at 289. By extension, allegations that plaintiffs know or associate with a former public employee who was suspended for insubordination and ultimately fired is, likewise, not defamatory. The statements do not imply Plaintiffs improper involvement with the installation of a carbon monoxide vent. Rather, Ms. Pincus asks whether the vent is legal, then reviews the regulations addressing vents, and concludes that the facts do not provide sufficient information to determine whether the vent is legal or not. Again, Plaintiffs strain the fair and natural meaning

91
7107708.3

of words to bolster their frivolous lawsuit. But even if the statement did imply the existence of a building code violation, such an implication is not susceptible to a defamatory meaning (because it does not harm reputations) and therefore is not actionable defamation. Finally, the statement encouraging a single reader to contact the construction office to ask whether the vent is legal is not susceptible to a defamatory meaning. Plaintiffs do not explain how or why this statement might harm their reputation because no such injury flows from the report of a suspected building violation for a vent that does not service the Plaintiffs penthouse. See Complaint 80. 10. Complaint Paragraphs 84 and 87

Paragraphs 84 and 87 complain of comments to a Galloway Patch article published on January 31, 2012, entitled Former Hoboken, Bridgeton Business Administrator Named Interim Acting Township Manager in Galloway: Arch Liston was also Township Manager and Chief of Police in Mount Holly.259 The complained of statements are not actionable defamation because they are true, substantially true, name calling, not susceptible to a defamatory meaning, and opinion. The statements are two of 43 comments posted to the Article. Within those comments, CuriousGal criticized Arch Listons record as Hobokens Business Administrator. Another commenter, addressing CuriousGal/Outofcontrol stated, You are a nasty, bitter partisan . ThisMeansWar wrote VinVan, Prosbus, Curiousgal (and other names they may use as the night goes on) are the husband and wife PAID OPERATIVE team of Lane Bajardi and Kim Cardinal. Bajardi and Cardinal are extremely closely aligned with (PAID BY) the political machine in Hoboken. Redrider765 wrote [Beth Mason] has spent a fortune on paid bloggers whos sole
Former Hoboken, Bridgeton Business Administrator Named Interim Acting Township Manager in Galloway: Arch Liston was also Township Manager and Chief of Police in Mount Holly, Galloway Patch, Anthony Bellano (Jan. 31, 2012).
259

92
7107708.3

mission in life is to trash her opponents Her posters are actually rather stupid. KHoboken wrote I see that the waters of Galloway have been infected with the toxic and carcinogenic presence of the myriad of screen names used by the paid political operative of the Russo/Mason cabal. CuriousGal and Vinvan engaged in the heated exchange, using their anonymous posts to attack Liston and Mayor Zimmer. Throughout the exchange Curious Gal and Vinvan did not respond to or deny the repeated allegations that they were Plaintiffs. Within the context of this lengthy and heated exchange, Ms. Pincus wrote the following, which is complained of in Complaint Paragraph 84: I live in Hoboken. We have a sickness living amongst us his name is Lane Bajardi and his wife is Kim Cardinal. Here they are posting as: VinVan, CuriousGal, prosbus, OutofControl. Both of them work in the media Bajardi is an anchor on 1010WINS radio. They are sick people Bajardi was actually arrested for assaulting a local blogger and stealing his camera. See story here: http://www.hudsonreporter.com/view/full_story/7140972/articlePolie-arrestmade-in-alleged-incident-at-Board-of-Education-forumThese 2 run smear campaigns on anyone affiliated with Mayor Dawn Zimmer. And they are sick people. Undiagnosed, with serious personality disorders. I was no surprised to find out that they were smearing Arch Liston, and EXCEPTIONAL Business Administrator. Do your best to ignore these 2 we call them Mr. and Mrs. Melanoma. Im a blogger and political activist, and also a frequent target of these 2 malevolent creatures. Do contact me with questions: Plaintiffs allege that the complained of statements are defamatory because (1) they do not post as Curius Gal, prosbus, VinVan, or OutofControl, (2) calling Plaintiffs a sickness damages their reputations, and (3) identifying 1010WINS as Lane Bajardis employer, where he is an on-air anchor, endangers his job. 93
7107708.3

Ms. Pincus also wrote, which is complained of in Paragraph 87: Bruce, the 39-year civil servant is Al Arezzo, a former Construction Code official who allegedly extorted people I know and is infamous in our City. CuriousGal (Kim Cardinal) is a hideous political operative whose husband has worked for years on the campaigns of a wealthy local Councilwoman named Beth Mason., yet Bajardi has NeverR ppeared on a Mason an ELEC report- meaning lots of undeclared income to the IRS. Oooops! http://www.hudsonreporter.com/view/full_story/7140972/articlePolice-arrestmade0in-alleged-incident-at-Board-of-Eductaion-forumMr. Bajardi, blogging here as VinVan has been questioned by the FBI, and is believed to be part of the criminal conspiracy to steal our mayors email and trafficking confidential city information. A friend of Bajardis named Patrick Ricciardi, has been arrested. More arrests will follow. Dont be surprised if you read about him in the paper. Arch is HONEST and THAT is why these vile, sick people are attacking him here. Read about it how Arch smacked down Mason and youll see why they are trying to smear him here: http://grafixavenger.blogspot.com/2011/12/liston-kos-mason-in-round-1.html Plaintiffs allege that the complained of statements are defamatory because (1) they do not post as Curius Gal or VinVan, (2) they are not political operatives, (3) they are not paid by Ms. Mason, (4) they do not have undeclared income, (5) Bajardi has never been questioned by the FBI, (6) Bajardi is not involved in a conspiracy involving the theft or trafficking of e-mails, (7) Bajardi is not friends with Ricciardi (City Hall IT staffer accused of stealing e-mails), (8) the statements imply Plaintiffs involvement in criminal activity. As discussed above, identifying Plaintiffs as the authors of comments by prosbus and Curious Gal (and the similar comments attributed to VinVan and OutofControl) is substantially true (see IV.A.2, above) and not susceptible to a defamatory meaning (see IV.A.3, above). Plaintiffs are political operatives and true statements are not defamatory. See IV.A.2, above. 94
7107708.3

Assertions that Plaintiffs are paid by Ms. Mason are also not susceptible to a defamatory meaning. See IV.A.3, above.

Referring to Plaintiffs as a sickness is name-calling and not actionable defamation. See IV.B.3, above.

Identifying 1010WINS as Lane Bajardis place of employment is true and therefore not actionable defamation. See Complaint 10.

Ms. Pincus statement that the failure to file ELEC reports would likely be accompanied by a failure to disclose income is stated within the contentious exchange of anonymous comments and is understood by reasonable readers to be non-actionable opinion. The comment

provides the factual basis for the opinion by way of a link to a Graphix Avenger blog article that provides pictures and a transcript of former Hoboken Business Administrator Arch Liston stating at a City Council meeting that he believes Ms. Mason pays more than $600 for someone to write short statements that she brings to City Council meetings. Ms. Masons ELEC reports do not list anyone being paid to write her stuff but Ms. Pincus has many emails that demonstrate that Plaintiffs write for Ms. Mason. Based on the disclosed facts, Ms. Pincus opinion is not actionable defamation, even if the opinion is ultimately derogatory or incorrect. See IV.B.1, above. Stating that someone has been questioned by the FBI is not subject to a defamatory meaning, as the FBI routinely questions individuals who are not suspected of any wrongdoing but may have information useful to their investigations. Whether or not Mr. Bajardi has been questioned by the FBI is likely unverifiable while the investigation is pending. Ms. Pincus believes Bajardi was questioned because of Beth Masons admission that she had spoken with the FBI, suggesting that her closest political operative would also be 95
7107708.3

spoken to, and Lane Bajardis sudden disappearance from City Council meetings following the FBI raid on City Hall. See IV.D.2, above. Finally, whether or not Lane Bajardi is friends with yet another potentially corrupt Russo Faction appointee (this time Ricciardi who has been charged with stealing e-mails from the Mayors office) is unverifiable. To the extent that Plaintiffs have spent years promoting the Russo Faction politicians, they are truthfully associated with the Russo Factions corrupt appointees, including Ricciardi. Finally, allegations that a plaintiff knows or associates with a criminal are not defamatory as a matter of law. Romaine v. Kallinger, 109 N.J. 282, 289 (1988). 11. Complaint Paragraphs 99 and 100260

The complained of statements come from a blog article published March 12, 2012 and entitled Silence on the Lenz and comments posted to that Article. The statements are not actionable defamation because they are true. The post explains that Hoboken411 had been defaming Mike Lenz, that Lenz sent a retraction demand to Perry Klaussen (owner and operator of Hoboken 411), Beth Mason, and Lane Bajardi, that only Beth Mason accepted the certified mail delivery, but, nevertheless, changes were made to the article in question. Lenz sent a second letter to Mason, Bajardi and Klaussen, demanding further changes and none of the respondents accepted the certified letter. Ms. Pincus posted the entire letter within her blog. The article concludes, So what does the silence tell you? (rhetorical) GA takes a special interest in one member of the trio: the on-air personality who works fo the AM radio station 1010WINS. The corporate owner of 1010WINS is

Plaintiffs do not allege that the statements in Complaint 99 and 100 are defamatory. This brief explains why these statements are not actionable defamation because statements that are not actionable defamation may not form the basis of other torts. See G.D. v. Kenny, 205 N.J. 275 (2011); see also Section V, below.

260

96
7107708.3

CBS. In fact, this on-air personality is a news reader. And as such prohibited from engaging in local partisan politics. This radio-guys silence with respect to the Lenz letter, the absence of denial that hed ghostwritten the Deconstructing Michael Lenz smear is an admission that he DID. He IS a partisan political operative participating in an online smear campaign. And knows he CANT deny it because there may be a sworn deposition in his future. Or may not. In the comments section, a commenter (JAM) states that maybe lenz should send the letter to lane at his 1010wins work address, care of the HR department.261 Another commenter, Redrider765 states Station manager would be my suggestion. Pincus responds, I agree with you, Red. Plaintiffs allege that stating that Lane Bajardi works at 1010WINS and encouraging readers to contact his employer endangers his job. First, stating that Lane Bajardi is an on-air anchor at 1010WINS does not endanger his job. See Complaint 10. Second, Ms. Pincus does not encourage readers to contact Bajardis employer, rather, she agree[s] (an opinion) with Redrider765 who had suggested that Mike Lenz send his letter to the 1010WINS station manager. Stating an opinion of agreement with a readers suggestion to take an action is not capable of being proven true or false because it does not state a fact. See IV.B.1, above. The context of the entire article was addressing the fact that Bajardi, Mason, and Klaussen would not accept certified letters addressing their false charges of racism and discrimination made on Hoboken 411 against Mike Lenz. The commenters reasonably

suggested the letter be sent to Lane Bajardis place of employment where he would likely receive the letter. Ms. Pincus agreement with that assessment is not actionable defamation.

261

Ms. Pincus is not liable for comments posted by third parties on her blog. 47 U.S.C. 230.

97
7107708.3

12.

Complaint Paragraph 103

Complaint Paragraph 103 includes statements published within the March 16, 2012 Grafix Avenger blog article The Sound of Silence. The article is not defamatory because it is true, substantially true, rhetorical questions and opinion. The article states: Guess WHO showed up to... um...defend the person he's not supposed to be- at least according to the corporate owner of 1010WINS, CBS. prosbus. It was overdue, frankly. His wife Kim Cardinal was getting pounded, forced to fend off the onslaught of commenters asking the obvious: was Lane Bajardi unwittingly used to aid and abet the corruption of Hoboken's zoning adjustment authority or was he Cammarano's willing pitch man in this corruption? GA can personally attest to Bajardi's long war on a fair and honest officialmyself. Now that we've discovered his alliance with Cammarano for control of the zoning adjustment authority (which Cammy sold to Dwek just days earlier) it puts Bajardi's lust for my seat in it's proper perspective; ingratiating himself with corrupt and powerful individuals is what it's been about. Take a look at who he and the Mrs. are sidling up to these days. Al Arezzo. Case closed. Today prosbus is in a bit of a bind. He can't 'defend' or 'explain' the actions of Lane Bajardi without stepping out from behind his screen name. It's delicious. But he did finally show up- to suggest the Cammarano-Bajardi disclosure was "undocumented hearsay" from a "biased source" (GA). So here's his comment with my response below. The blog article then republishes a comment from prosbus stating Undocumented hearsay by a biased source against a known political opponent concerning circumstances that occurred 2 years ago. Thanks for your input Scott.

98
7107708.3

The prosbus comment is followed by Ms. Pincus responsive post which included a timeline of the following events: Peter Cammarano agreeing to sell zoning variances, Lane Bajardi publicly speaking in favor of Peter Cammarano retaining his ability to name members of the zoning board (a prerequisite to Cammaranos ability to follow through on his end of the bribes), and Peter Cammaranos arrest for corruption. Prior to those events, Lane Bajardi publicly endorsed Peter Cammarano because Cammarano had sought Lane Bajardis counsel and listened to his advice.262 Plaintiffs allege that the complained of statements are false and defamatory because (1) Lane Bajardi does not post as prosbus, (2) Lane Bajardi has never aided or abetted corruption, (3) Lane Bajardi is not working for or with former Hoboken mayor Peter Cammarano, (4) the statements imply involvement in criminal activity, and (5) identification of Lane Bajardis workplace endangers his job. Whether Lane Bajardi posts as prosbus is not susceptible to a defamatory meaning (see IV.A.3, above) and is substantially true (see IV.A.2, above). Ms. Pincus did not state that Lane Bajardi aided or abetted corruption rather she fairly reported a question others were asking, specifically was Lane Bajardi unwittingly used to aid and abet the corruption of Hoboken's zoning adjustment authority or was he Cammarano's willing pitch man in this corruption? Even if the question were attributed to Ms. Pincus, it is a rhetorical question meant to spur discussion and, therefore, non-defamatory. Within the larger context of the exchange, Ms. Pincus immediately provides the factual basis for her question, Bajardis work with Cammarano concerning authority over the ZBA. If the rhetorical question did suggest that Bajardi aided or abetted corruption knowingly or unwittingly the suggestion is an opinion based on disclosed facts and therefore not actionable defamation. See IV.B.1, above.
262

Plumb Cert. Exh. RR.

99
7107708.3

Plaintiffs assertion that Bajardi is not working for or with former Hoboken mayor Peter Cammarano does not address the complained of statement. Ms. Pincus was clearly referring to Lane Bajardis former work for Peter Cammarano when he publicly lobbied for Cammaranos retention of authority over the ZBA. The full context of the statement includes the factual timeline which Ms. Pincus relied on to reach her opinions. The statement does not imply involvement in criminal activity. There is nothing illegal about the Plaintiffs well-documented efforts to ingratiate themselves to corrupt (Peter Cammarano) and powerful (Beth Mason) public officials. The rhetorical question addressing aiding and abetting Cammaranos corruption asks whether Bajardis role was unwitting, thereby negating the knowledge element necessary to imply criminal behavior. Finally, truthfully identifying Lane Bajardis place of employment, 1010WINS where he is an on-air anchor, is not actionable defamation. See IV.A.2, above. 13. Complaint Paragraph 118

The complained of statement is a comment to a Hoboken Patch Article published on May 21, 2012 entitled The Charter School Tax Dilemma.263 The statement is not actionable

defamation because it is substantially true, not susceptible to a defamatory meaning, rhetorical questions and opinion. Again, these anonymous comments are part of a heated exchange on a political blog and understood by reasonable readers as opinions. The one page Patch article resulted in 717 posts (that print out on 117 pages in small font) spanning over three weeks. One of those comments is the statement complained of in Complaint 118. During those three weeks of comments a hearing was held concerning Board of Education member Theresa Minutillos criminal harassment complaint against Matt Calicchio, an employee of Beth Masons 501(c)(3) civic league. The judge found that Calicchio and his
263

The Charter School Tax Dilemma, Hoboken Patch, Scott Siegal (May 21, 2012).

100
7107708.3

witness lied on the stand, and found that Calicchio was being used for political purposes in exchange for a job at the Mason Family Civic League. The judge also decried Calicchios bullying of political officials on behalf of the Mason Family Civic League. Calicchio was however found not guilty of criminal harassment because Minutillo is a public figure and we live in a democracy.264 On approximately page 89 of the comment thread, the discussion veered into the Calicchio criminal harassment trial. One hundred pages into the ongoing, heated political discourse, in which others had repeatedly identified prosbus and Curious Gal as Lane Bajardi and Kim Cardinal, Ms. Pincus posted details of the Calicchio trial and was immediately attacked as a bully by Curious Gal. In response, Ms. Pincus wrote the below complained of statement: It appears I've hit a nerve with Curious Gal / Kim Cardinal. About hubby prosbus/Lane Bajardi never appearing on an ELEC report, and ALL of that unpaid tax-income you 2 may owe the IRS? Is the IRS a bully, too? How has Bajardi been paid all these years? What about Klaussen? I never saw his name on a Mason ELEC after 24/7 advertising last year. It looks like taxpayers were funding Mason's 501(3)(c) political operative employment agency. Are CG and prosbus on the 501(c)(3) dole, too? Is that why she's so angry now? http://grafixavenger.blogspot.com/2012/06/bombshell-mason-finboy-non-profitsham.html Yes, puzzledone, Mason's thug harassed a woman with her 5 year-old daughterTHAT's a bully. Timmy dispatched cops to my house to interrogate me in the presence of my (then) 8-year old daughter. THAT's a bully. CG thinks truth tellers and sunlight and tax laws are 'bullies'. Boo hoo. Somebody, call a WAHHHHHmublance. Plaintiffs allege that the complained of statement is false because (1) Plaintiffs do not post anonymously as Curious Gal and prosbus, (2) Plaintiffs are not paid political operatives,
264

See Plumb Cert. Exh. SS (relevant portions of the hearing transcript).

101
7107708.3

and are not paid by Ms. Mason or any 501(c)(3) affiliated with Mason,265 and (3) are not being investigated by the IRS, and have not committed tax evasion. Plaintiffs are not defamed by statements asserting that they post as Curious Gal and prosbus (see IV.A.3, above) and, in any case, the assertion is substantially true (see IV.A.2, above). The complained of statement does not state that Plaintiffs are paid by Ms. Mason or any 501(c)(3) affiliated with Mason. The complained of statement does not say that Plaintiffs are being investigated by the IRS or that they have committed tax evasion. The rhetorical questions posed in the complained of statements are non-actionable rhetoric. The question all of that unpaid tax-income you 2 may owe the IRS? is a question that by the use of the word may leaves open the possibility that taxes have been paid. How has Bajardi been paid all these years? is also merely a rhetorical question meant to inspire discussion and based on the facts that (1) Bajardis resume does not report that he held a job between 2009 and 2011 those years are simply left blank and (2) Bajardi did steady political work for Beth Mason during that time period. Likewise, the rhetorical question Are CG and prosbus on the 501(c)(3) dole too? is meant to spur debate concerning which of Beth Masons other political operatives are being paid. Days before the complained of comment was posted, a Superior Court Judge found that an individual, Matt Calicchio, was being paid by the Mason Familys 501(c)(3) to do political work for Beth Mason. Ms. Pincus knew that Calicchio was not listed on any Mason ELECs. That disconnect raised a legitimate question of public concern regarding who else was being paid to do political work for Beth Mason but was not listed on any Mason ELECs. Another issue of public concern that had been recently debated at a City Council meeting is the identity of who Beth Mason pays to write her political material. It is well documented that Plaintiff Lane Bajardi
265

Query why the Plaintiffs used such specific language to describe the 501(c)(3) that does not pay them.

102
7107708.3

has written for Beth Mason. Given these indisputable facts, and commenting on an issue of public concern, Ms. Pincus did not defame Plaintiffs by asking the rhetorical question, Are CG and prosbus on the 501(c)(3) dole, too? because rhetorical questions are not actionable defamation. See IV.B.2, above. The context of the statement also reveals that it is non-defamatory. The statement is posted 100 pages into a 117-page comment thread addressing Hoboken politics. Throughout those 717 comments not a single commenter was persuaded to change their mind by any other commenter. No one was listening, everyone was shouting. On page 87 of the comments (June 6, 8:12 pm), a reasonable reader wrote, I like to see passionate opinions on both sides, I assure you I do not come here for my facts. While most reasonable readers likely would not even read these comments, certainly not 100 pages of them, anyone who did read them would quickly discern that they were nothing more than a political shouting match between entrenched camps of individuals who seem to know each other and clearly do not like each other. Given that context, no reasonable reader would take these comments at face value, but rather as the opinions of each speaker, and for that reason alone the complained of statement is not defamatory. 14. Complaint Paragraph 121

The complained of statements were published on June 23, 2012 within the blog entry entitled Data Smuggling at the BoE: Whodunit? The statements are not actionable defamation because the statements are true, substantially true, not verifiable, opinion, and not susceptible to defamatory meaning.

103
7107708.3

The Article advances a conspiracy theory hatched from the comments section of a June 14, 2012 Hoboken Patch article entitled, Long Time High School Track Coach not ReAppointed.266 That Patch article was followed by 79 comments. The first comment, which was not authored by Ms. Pincus, stated, This could generate some excitement in Edgewater with CuriousKim/Prosbus. Also a chance to play the race card is always exciting for Kimmy. The comments discussion degenerated from there. Twenty-six comments into the heated exchange of comments, Curious Gal indicated that she had inside information concerning the basis of the decision not to re-appoint the public schools track coach, and, later, promised readers more about this in the next few weeks. By the end of the comment string, essentially all of the commenters had identified Curious Gal as Kim Cardinal. In response to those comments, the complained of Article proposed a conspiracy theory. This conspiracy theory was a joke, written in a detective dime novel/film noir style, and only pretending that there was a whodunit question concerning how information flows from closed session board of education meetings to the internet. The article first summarized the e-mail theft from the Mayors offices and then addressed recent statements leaked from closed session Board of Education meetings. The conspiracy theory advanced by Ms. Pincus in her blog hypothesizes two conspirators, an insider (Conspirator A) and a political operative (Conspirator B) to push the leaked information to the local press. Conspirator A is identified as Maureen Sullivan. (Readers of Ms. Pincus blog would recall that Maureen Sullivan ran for the Board of Education with the Kids First / Reform candidates but then defected to the Russo Faction in a manner similar to Beth Masons political career.)
266

The article includes a comment purportedly authored by

Plumb Cert. Exh. BBB.

104
7107708.3

MaureenSullivan (the article from which the comment is copied is not identified) which begins with the phrase In closed session, the majority of the board decided on a contract and goes on to relate supposed details of a closed session Board of Education meeting. Ms. Pincus theory concerning Conspirator B states: The political operative who posts online under many different monikers, but mostly as Curious Gal and prosbus, and has never denied she is Kim Cardinal. Cardinal is the current (or former) wife of 1010WINS cabby-crooner Lane Bajardi. Cardinal has not denied she's moved out of Hoboken to a waterside development in Edgewater. Curious Kim has been the Energizer Bunny of this conspiracy to seed Patch with closed-session allegations- which cannot be debated or refuted because they are closed session. This is Cardinal's modus operandi- planting ugly rumors online, lies and spin, against those she perceives as 'enemies'. All disturbing, and in this case, her victim is an African American. The vigor and venom with which Curious Gal has pursued this individual with unethically-obtained information NOT AVAILABLE BY OPRA REQUEST suggests a very dark motive driving her animus toward this African American professional. The remainder of the post discusses Maureen Sullivans former disclosures of closed session meetings and her disdain for Kids First Board of Education members. Closed session Board of Education meeting minutes are not available by OPRA request. Plaintiffs allege that the complained of statement is defamatory because Kim Cardinal (1) is not racist (2) has never posted racist comments directed toward an African American, (3) nor has she pursued any investigation against an African American out of racist motivation, (4) does not post as Curious Gal or prosbus, and (5) does not live in Edgewater. Plaintiffs further allege that (6) Plaintiffs are not divorced, (7) Plaintiffs are not maintaining separate residences, and (8) stating where Mr. Bajardi works endangers his job, and (9) the statements imply involvement in criminal activity. Stating that Lane Bajardi is an on-air anchor at 1010WINS is true and, therefore, not defamatory. See Complaint 10.

105
7107708.3

Stating that Kim Cardinal posts comments as Curious Gal or prosbus is substantially true. See IV.A.3, above.

Whether or not Kim Cardinal is racist is not verifiable and non-defamatory. See IV.B.1, above. Rather, it is merely Ms. Pincus opinion that Kim Cardinal is a racist based primarily on her opposition to Kids First candidates.

The complained of statement does not state or imply that Cardinal posted racist comments directed towards African Americans. Rather, it implies that statements posted by Curious Gal, whom Ms. Pincus believes is Kim Cardinal, were inspired by racist motivations. Whether or not Kim Cardinal is racist is unverifiable and necessarily opinion.

The complained of statement does not state that Kim Cardinal has pursued any investigation against an African American out of racist motivations. (However, if it did say that, it would be protected as unverifiable and opinion.) Plaintiffs remaining contentions are similarly meritless. Assertions that Kim Cardinal

lives in Edgewater, maintains a separate residence, or is divorced is not susceptible to a defamatory meaning. The basis for Ms. Pincus opinion that Plaintiffs may be divorced is clearly stated in the text, i.e., Curious Gals refusal to deny that she has moved to Edgewater. The comment section to the Patch Article, which is the basis for the complained of Article, includes a response to Curious Gals question about Edgewater by providing an image showing the location of the residence of a Kim Cardinal in Edgewater. Finally, Plaintiffs allegation that the complained of statement implies criminal activity is simply misstates First Amendment law. Receiving and disseminating leaked information, even information that was leaked illegally, is not criminal. information is protected speech. New 106
7107708.3

In fact, the publication of leaked Times Co. v. United States,

York

403 U.S. 713 (1971). The complained of statement simply does not imply criminal activity and Plaintiffs strained interpretations cannot make it so.

V THE COMPLAINED OF STATEMENTS DO NOT STATE CLAIMS FOR INTENTIONAL TORTS Plaintiffs fourth cause of action claims that Ms. Pincus, by publishing the complained of statements, has intentionally inflicted emotional distress upon them and has somehow interfered with undisclosed contracts, are wholly without merit. As an initial matter, conduct which does not constitute actionable defamation may not be relied on to sustain a different cause of action based solely on the consequences of that alleged defamation. G.D. v. Kenny, 205 N.J. at 275; see LoBiondo v. Schwartz, 323 N.J. Super 391, 417 (1999). Specifically, where an intentional tort is predicated upon the same conduct on which the defamation count is predicated, the defamation cause completely comprehends the malicious interference cause because if the alleged defamation is not actionable, then its consequences are also not actionable. Lobiondo, 323 N.J. Super. at 417; see also Decker v. The Princeton Packet, 116 N.J. 418, 432 (1989) (the interrelated nature of emotional distress and defamation claims call for consistent results). For the reasons explained in Parts III and IV above, the complained of statements do not constitute actionable defamation and, therefore, do not state claims for intentional torts. Second, even where complained of statements constitute actionable defamation against a public figure or address a matter of public concern, a plaintiff must establish actual malice to prevail in an action for intentional torts based on the same conduct. DeAngelis, 180 N.J. at 20; citing Hustler, 485 U.S. at 56; see also Decker v. Princeton Packet Inc., 116 N.J. 418, 432 107
7107708.3

(1989) (to recover for infliction of emotional harm, plaintiff must establish at least the same level of intent as necessary to find defamation). Plaintiffs do not even allege fault beyond negligence. See Complaint 156. The Court may find at this stage that the complaint must be dismissed based on the incontrovertible evidence that the Plaintiffs cannot establish that Ms. Pincus published with knowledge that the complained of statements were false. A. The Complaint Does Not State A Cause of Action for Intentional Infliction of Emotional Distress A plaintiff must plead four elements to state a claim for intentional infliction of emotional distress. See Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 22-23 (App. Div. 2001). Plaintiff has the burden of establishing that the defendant (1) acted intentionally or recklessly, and (2) outrageously and (3) proximately caused (4) severe distress. Id. (quoting Buckley v. Trenton Sav. Fund Soc'y., 111 N.J. 355, 366-67 (1988)). A court determines whether outrageous conduct could possibly be found as a matter of law based on the facts. See Taylor v. Metzger, 152 N.J. 490, 509-10 (1998). In addition to the failure to state a claim for defamation and the Plaintiffs inability to establish actual malice, the complaint fails to identify outrageous conduct and fails to plead severe distress. Plaintiffs have not bothered to identify the extreme or outrageous conduct necessary to form the basis of an intentional infliction of emotional distress claim. Buckley v. Trenton Saving Fund. Soc., 111 N.J. 355, 365-66 (1988). To state a claim for intentional infliction of emotional distress, conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Id. at 366-67 (quoting Restatement (Second) of Torts, Sec. 46 comment d). Such conduct must clearly exceed all bounds tolerated by decent society. See Hume v. Bayer, 178 N.J. Super. 310 (N.J. Super. 1981). In Hume, New Jersey recognized intentional 108
7107708.3

infliction of emotional distress for behavior beyond all bounds of decency in an action by parents against a doctor who merely removed their sons mildly infected appendix but told the plaintiffs that he had instead excised possibly cancerous tissue and that a test for cancer (which was never performed) would take two days. The defendant doctor then withheld pain relievers for two days while the patient repeatedly vomited in a great deal of pain (from an undiagnosed bowel blockage) before telling the parents that the fictional cancer tests were negative. Id. at 313. In Hume, the court cited examples of sufficiently outrageous conduct, including spreading false rumors that a plaintiffs son had hung himself, bringing a mob to a plaintiffs door with a threat to lynch him if he did not leave town, and wrapping a dead rat inside a loaf of bread for a sensitive person to open. Id. at 314. Recently, the Appellate Division catalogued scenarios that meet the elevated threshold of pleading an intentional infliction of emotional distress, including, in addition to the facts in Hume, (1) a county sheriff using an atrocious racial slur to refer to an African-American employee, (2) falsely reporting that a non-violent Buddhist plaintiff had threatened to kill students and then arranging to have the plaintiff removed publicly from a school in retaliation for spurned sexual advances, (3) three individuals at a military facility, including the plaintiffs supervisor, surrounding the plaintiff, making comments and gestures to suggest that she was to perform a sexual act on the supervisor while others watched and then threatening that the Mafia would become involved if the plaintiff pursued an investigation of the incident, and (4) a landlord shutting off heat, running water, and security in an effort to induce tenants to vacate. Ingraham v. Ortho-McNeil Pharmaceutical, 422 N.J. Super. 12, 21 (App. Div. 2011) (collecting cases). In contrast, the outrageous conduct requirement was not met when a plaintiff was called names and subjected to intimidating gestures or when derogatory genderbased comments were made to a plaintiff along with allegations that her fianc was a cheat and a

109
7107708.3

liar. Ferraro v. Bell Atlantic Co., 2 F.Supp.2d 577, 589 (D.N.J. 1998); Obendorfer v. Gitano Group, Inc., 838 F.Supp. 950, 952, 955 (D.N.J. 1993). In this case, the Plaintiffs have only identified either blog articles or comments to blog articles that they allege are defamatory. None of the posts even approach the outrageous conduct necessary to state a claim for intentional infliction of emotional distress. Plaintiffs have

identified a handful of comments in which they claim that they were threatened, but (1) no such threats were ever made and (2) even if Plaintiffs were threatened such threats would not constitute intentional infliction of emotional distress. See Ferraro, 2 F.Supp.2d at 589

(intimidating gestures are not sufficient to state a cause of action for intentional infliction of emotional distress). Finally, the Plaintiffs do not sufficiently allege injury to sustain a cause of action for intentional infliction of emotional distress. The severe emotional distress required to prevail on a cause of action for intentional infliction of emotional distress is a severe and disabling emotional or mental condition which may be generally recognized and diagnosed by trained professionals. Turner v. Wong, 363 N.J. Super. 186, 200 (App. Div. 2003). The distress must result in either physical illness or serious psychological sequelae. Id. Plaintiffs mere statement that Defendants actions caused Plaintiffs severe emotional distress, without describing the medically diagnosed physical illness or mental impairment, cannot sustain a cause of action for intentional infliction of emotional distress. Plaintiffs have also failed to provide a written statement of damages as demanded within Pincus November 14, 2012 Answer. B. The Complaint Does Not State A Cause of Action For Intentional Economic Torts

Plaintiffs First and Fifth causes of action, which claim tortious interference with
business relations and intentional interference with prospective economic relations, fail to state a 110
7107708.3

claim because the Plaintiffs have not identified a contract that was breached or economic opportunity foregone based on the complained of comments. An action for tortious interference with a prospective business relation protects the right to pursue ones business, calling or occupation free from undue influence or molestation. Printing Mart-Morristown, 116 N.J. at 750. To establish such a claim, plaintiff must establish: (1) a reasonable expectation of economic advantage; (2) that the defendant intentionally interfered with that interest; (3) injury or loss inflicted without justification or excuse; and (4) causation. Id. at 751-52. Plaintiffs claim that by identifying Mr. Bajardis place of work and sending an e-mail to his supervisor, Ms. Pincus has intentionally interfered with his prospective economic interest because Mr. Bajardi has received reprimands and warnings from his employer as a result of Defendants actions. See Complaint 168; see also 47, 84, 99, 100, 103, 121 (statements identifying 1010WINS as Lane Bajardis employer). The Plaintiffs have not identified an economic loss inflicted without justification. Rather, Plaintiffs state that Lane Bajardi has received reprimands and warnings.267 Since the initial publication of the comments that form the basis of the Complaint, Lane Bajardi has been hired by 1010WINS, became an on-air anchor, started voicing radio commercials, and has occasionally been assigned the drive-time anchor time slot. His meteoric rise as a radio personality, after years of unemployment, to the apex of his chosen profession indicates that he has not suffered any economic damages at all. And Plaintiffs tellingly do not say what

Plaintiffs state that the reprimands and warnings resulted from the Defendants actions. Plaintiffs would be hardpressed to discern the reprimands and warnings Bajardi received based on the Defendants actions as distinguished from reprimands and warnings Bajardi would receive upon disclosure of undisputed facts concerning Bajardis role in Hoboken politics including, among other things, his inflammatory City Council appearances including ethnically based accusation directed towards the Jewish Mayor, his robbery arrest, and the Board of Educations threat to have him arrested for his public disturbance.

267

111
7107708.3

reasonable economic advantage Lane Bajardi has missed out on at 1010WINS during his short tenure with that organization. Furthermore, as stated above, nothing that Ms. Pincus stated concerning 1010WINS constituted actionable defamation and, the economic causes of action against her should be accordingly dismissed. CONCLUSION For the reasons explained above, the Court should grant Defendant Nancy Pincus motion for summary judgment and dismiss the Complaint in its entirety on the merits and with prejudice. In the alternative, the Court should grant Defendant Nancy Pincus motion for summary judgment (1) dismissing each statement which does not constitute actionable defamation, (2) declaring that the Plaintiffs are public figures and/or that the complained of statements constitute matters of public interest sufficient to implicate the actual malice standard, (3) dismissing the non-defamation tort claims, and (4) any such further relief as this Court deems appropriate.

Dated: New York, New York January 7, 2013 CARTER LEDYARD & MILBURN LLP

By: _______________________________ Michael K. Plumb, Esq. Two Wall Street New York, New York 10005 (212) 732-3200 Attorneys for Defendant Nancy Pincus

TO:

Amy D. Cox, Esq. 2308 Dorchester Street West Furlong, PA 18925 112

7107708.3

Whitney C. Gibson Colleen M. Devanney Vorys, Sater, Seymour and Pease LLP Suite 3500, Great American Tower 301 East Fourth Street Cincinnati, OH 45202 Kerry B. Flowers Flowers & OBrien, LLC 70 Adams Street, 4th Floor Hoboken, NJ 07030 Roman Brice 1032 Hudson Street Hoboken, NJ 07030

113
7107708.3